--:-- [Sound of a courtroom]
--:-- Patrick Thomas: One of the biggest corporate dramas of the year played out recently inside a sweltering courtroom in Oregon.
--:-- Jessica Mendoza: Our colleague Patrick Thomas was there covering the trial. And it's a smaller, a little bit of a smaller courtroom, not accustomed to these kind of high-profile antitrust trials.
--:-- Patrick Thomas: And it got really hot in that courtroom. I mean, everybody's got to pack together in the back benches. And it was, yeah, it would get pretty toasty.
--:-- Jessica Mendoza: The case? The Federal Trade Commission was suing to block a merger between the country's two largest supermarket chains, Kroger and Albertsons.
--:-- Patrick Thomas: At a high level, it was about the largest grocery store deal of all time. And if these two companies combining were going to mean higher food prices for consumers.
--:-- Jessica Mendoza: The deal would have been worth $20 billion, and it would have created a mega grocery store operator.
--:-- Patrick Thomas: This week, months after the FTC filed its suit, a judge finally ruled on the case.
--:-- Jessica Mendoza: The federal judge has blocked the merger of grocery giants Kroger and Albertsons after a three-week hearing.
--:-- Patrick Thomas: It's a deal that didn't check out.
--:-- Jessica Mendoza: And so you would think that the judge's ruling here, no, you cannot push through with this merger, would be the end of the story. But was it?
--:-- Patrick Thomas: Of course not.
--:-- Jessica Mendoza: Shortly after the judge made this decision, Albertsons decided they were going to sue Kroger for billions of dollars.
--:-- Jessica Mendoza: Welcome to The Journal, our show about money, business, and power. I'm Jessica Mendoza.
--:-- Patrick Thomas: It's Thursday, December 12th.
--:-- Jessica Mendoza: Coming up on the show, the supermarket mega-merger that wasn't.
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--:-- Jessica Mendoza: In 2022, Kroger, the country's largest supermarket chain, announced plans to buy a big competitor, Albertsons.
--:-- Patrick Thomas: Kroger operates more than 2,700 supermarkets across the country.
--:-- Jessica Mendoza: Which means if you shop at a Ralph's on the West Coast, a Mariano's in the Chicago area, or a Harris Teeter in the Southeast, you're shopping at a Kroger-operated store.
--:-- Patrick Thomas: And then on the other side of this, you have the second biggest supermarket operator, Albertsons.
--:-- Jessica Mendoza: Which is a little bit more known on the West Coast.
--:-- Patrick Thomas: The name is a little bit less known, but, think of Safeway, a storied name like that that falls under the Albertsons company.
--:-- Jessica Mendoza: A Kroger-Albertsons merger would have created a $200 billion company with about 4,500 stores across the United States.
--:-- Patrick Thomas: Back in February, the FTC sued to block this deal under antitrust law.
--:-- Jessica Mendoza: What was the FTC's case in trying to block this deal in the first place?
--:-- Patrick Thomas: So the FTC's case essentially is you can't take the number one and the number two biggest supermarket, put them together and not expect there to be a loss in competition in the market and not expect consumers to feel that.
--:-- Jessica Mendoza: And it would give Kroger enough dominance where they could raise prices unchecked.
--:-- Patrick Thomas: But Kroger and Albertson said, hold up.
--:-- Jessica Mendoza: We may be the largest supermarket chains in the country but we still small fries compared to some mega corporations that sell groceries especially Walmart.
--:-- Patrick Thomas: The company central case is that they in trouble because Walmart is actually the biggest seller of groceries in the United States by a lot.
--:-- Jessica Mendoza: If you bought these kinds of groceries at Walmart, you could save on average over $700 a year.
--:-- Patrick Thomas: Well over 20% of the grocery market share goes to Walmart and Kroger's only 9%.
--:-- Jessica Mendoza: So people really go to Walmart for groceries.
--:-- Patrick Thomas: And their argument is we have to be on the same level as Walmart when it comes to scale and buying power.
--:-- Jessica Mendoza: Kroger says if you want lower grocery prices, we need to be on that level.
--:-- Patrick Thomas: The trial began in August.
--:-- Jessica Mendoza: Lawyers for Kroger and Albertsons had a star witness, Kroger CEO Rodney McMullen.
--:-- Patrick Thomas: Mr. McMullen references a store in Dixon, Tennessee in the 1990s.
--:-- Jessica Mendoza: And when he saw a Walmart open near that particular town, and the sales of the Kroger in that town just plummeted after the fact.
--:-- Patrick Thomas: And he referenced that in court as being kind of a seminal moment for him seeing like, wow, look at these stores like a Walmart, these discount kind of stores that can undercut supermarkets.
--:-- Jessica Mendoza: So if you're keeping score, Kroger sells 9% of all groceries in the U.S. Albertsons sells 5%.
--:-- Patrick Thomas: And Walmart sells well over 20%.
--:-- Jessica Mendoza: So even if Kroger and Albertsons were to combine, they still wouldn't match Walmart in grocery sales.
--:-- Patrick Thomas: And McMullen wasn't just worried about Walmart.
--:-- Jessica Mendoza: There's also Amazon.
--:-- Patrick Thomas: One of the scenes he brought everybody through was in 2017, Amazon's purchase of Whole Foods was, as he called it, a watershed moment for the industry.
--:-- Jessica Mendoza: Them doing this big deal and Amazon putting their buying power together with Whole Foods to basically making Amazon a competitor to Kroger.
--:-- Patrick Thomas: Which, scared of me, keeps a copy of the local business journal in his office to just remind him of that deal and that Amazon is out there.
--:-- Jessica Mendoza: And did Albertsons say anything about competitors like Walmart and Amazon?
--:-- Patrick Thomas: Albertsons sees a little bit more of an existential threat.
--:-- Jessica Mendoza: Albertsons testified in court shortly after Mr. McMullen did, saying, look, we kind of need this deal because we see bigger threats on the horizon to our business.
--:-- Patrick Thomas: That we're financially sound right now, but two to three years from now, we don't think we can even compete to the level Kroger is in terms of lowering prices and getting market share and competing against these Walmarts.
--:-- Jessica Mendoza: But a federal judge wasn't buying it.
--:-- Patrick Thomas: On Tuesday, Judge Adrienne Nelson of the U.S. District Court in Oregon ruled against the deal.
--:-- Jessica Mendoza: So she came down on the side of the FTC with a pretty emphatic no to this merger, saying this was something that would erode competition and ultimately lead to higher prices for consumers.
--:-- Patrick Thomas: And that this merger was not going to happen under her watch.
--:-- Jessica Mendoza: In her decision, Nelson said the chains clearly compete against each other in a way that benefits consumers.
--:-- Patrick Thomas: And that the proposed merger would remove that competition.
--:-- Jessica Mendoza: The ruling effectively killed the merger.
--:-- Patrick Thomas: The supermarket giant said they would stop pursuing the deal.
--:-- Jessica Mendoza: But now, there's a new round of finger-pointing.
--:-- Patrick Thomas: A new twist in the attempted Kroger-Albertson's merger, a day after it was blocked by a judge.
--:-- Jessica Mendoza: Now it looks like Albertsons is going to sue Kroger.
--:-- Patrick Thomas: That's after the break.
--:-- [Sound of a commercial break]
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--:-- [Sound of a commercial break]
--:-- Patrick Thomas: Less than 24 hours after Judge Nelson ruled against the Kroger-Albertsons deal, Albertsons sued Kroger.
--:-- Jessica Mendoza: And while it isn't rare for parties in a failed merger to sue one another, the speed at which Albertsons filed its suit surprised Patrick.
--:-- Patrick Thomas: I mean, this legal fight is, it's, Albertsons is suing them for, I mean, billions of dollars.
--:-- Jessica Mendoza: And that is a significant chunk of money for a company like Kroger that sells a lot of people's foods, as well as Albertsons and the livelihood of Albertsons.
--:-- Patrick Thomas: What is it that Albertsons is alleging?
--:-- Jessica Mendoza: So Albertsons, they have two kind of main things they're alleging here.
--:-- Patrick Thomas: Number one, they're saying Kroger decided not to give them the termination fee.
--:-- Jessica Mendoza: Basically, when these two companies decided we're going to merge as part of their merger agreement, Kroger said that if this doesn't happen, we're going to pay Albertsons $600 million.
--:-- Patrick Thomas: Albertsons is alleging that Kroger tried to stiff them, more or less, and not pay the fee.
--:-- Jessica Mendoza: And they're suing for that.
--:-- Patrick Thomas: And that Kroger breached the merger agreement by not doing everything in their power to make this go through with regulators.
--:-- Jessica Mendoza: Basically, Albertsons argues that Kroger should have worked harder to show that the deal wouldn't be anti-competitive.
--:-- Patrick Thomas: As part of the proposed merger, Kroger planned to sell off stores where there was market overlap.
--:-- Jessica Mendoza: But Albertsons says that Kroger should have offered to sell more stores, that the stores they agreed to sell should have been more profitable.
--:-- Patrick Thomas: And that it should have picked a more successful third-party company to sell the stores to.
--:-- Jessica Mendoza: Kroger says the claims are baseless.
--:-- Patrick Thomas: It says that Albertsons was the one who repeatedly breached their agreement and that the suit is an attempt to deflect responsibility.
--:-- Jessica Mendoza: So, OK, with this lawsuit now happening, Albertsons suing Kroger, where does this leave Kroger and Albertsons?
--:-- Patrick Thomas: Well, Kroger has said that there's not someone as big or transformational as an Albertsons out there.
--:-- Jessica Mendoza: So they may do some other wonkier things like share repurchases or put money back towards their stores or supply chains, try and go in on their own.
--:-- Patrick Thomas: And analysts generally feel that Kroger is in healthy enough shape where they will be okay.
--:-- Jessica Mendoza: They're not going to get the same earnings potential or the same transformation they would have had buying Albertsons.
--:-- Patrick Thomas: They won't get that.
--:-- Jessica Mendoza: That's more or less where it leaves Kroger.
--:-- Patrick Thomas: What about Albertsons?
--:-- Jessica Mendoza: Albertsons, it's far more uncertain given that in court, like their CEO on the stand painted a much more doom and gloom picture about their future as a company.
--:-- Patrick Thomas: But he said in two to three years, they might have to consider layoffs and store closures and that they really needed this deal to happen.
--:-- Jessica Mendoza: So it's more uncertain what's going to happen to them.
--:-- Patrick Thomas: So the FTC sued because they were worried that this merger was anti-competitive, and the judge agreed.
--:-- Jessica Mendoza: But if Albertsons is right, and in a couple of years they wind up closing a bunch of stores, wouldn't that also limit consumer choice?
--:-- Patrick Thomas: Certainly.
--:-- Jessica Mendoza: That could limit consumer choices.
--:-- Patrick Thomas: You could have a situation where Albertsons decides to start shedding stores, and you do have fewer options.
--:-- Jessica Mendoza: And instead of being owned by a Kroger, which promised to invest a billion dollars annually in lower prices, you don't get that.
--:-- Patrick Thomas: And you just lose your option.
--:-- Jessica Mendoza: The ruling just dealt a blow to Kroger and Albertsons.
--:-- Patrick Thomas: It could also empower big retailers like Amazon and Walmart.
--:-- Jessica Mendoza: Because the FTC argued that while those companies do sell groceries, they aren't in direct competition with traditional supermarkets.
--:-- Patrick Thomas: And Judge Nelson agreed.
--:-- Jessica Mendoza: So for companies like Amazon and Walmart, does this situation pave the way for them to become even bigger threats?
--:-- Patrick Thomas: To the likes of Kroger and Albertsons?
--:-- Jessica Mendoza: Like, could they buy up other grocery stores?
--:-- Patrick Thomas: Is that still an open channel for them?
--:-- Jessica Mendoza: They certainly could.
--:-- Patrick Thomas: Walmart's, you know, got a lot of power in the industry, and they've got a balance sheet deep enough to experiment in other ways in grocery that Albertsons can't.
--:-- Jessica Mendoza: Walmart can do that.
--:-- Patrick Thomas: Amazon, could they do more deals in grocery in addition to Whole Foods that they did in 2017 that Mr. McMullen told us was a watershed moment?
--:-- Jessica Mendoza: They certainly could.
--:-- Patrick Thomas: That's speculation.
--:-- Jessica Mendoza: But there are some in the industry who have told me that they do expect Amazon to be a buyer if they want it to be.
--:-- Patrick Thomas: We don't know that for certain, but that they wouldn't be shocked if Amazon did more grocery deals to try and establish more of a brick and mortar presence.
--:-- Jessica Mendoza: And that would be essentially what Mr. McMullen on the witness stand warned us about.
--:-- Patrick Thomas: One contextual piece that we kind of touched on early in the conversation is that this all happened under the Biden administration's FTC, which has been pretty strict about mergers in the past four years.
--:-- Jessica Mendoza: Would a merger like this have had a better chance under a Trump administration?
--:-- Patrick Thomas: You know, that's a great question.
--:-- Jessica Mendoza: I had plenty of conversations with folks who did kind of wonder out loud if it would have been better to wait two years and see if they could have waited this out.
--:-- Patrick Thomas: We'll never know the answer to that.
--:-- Jessica Mendoza: What does this story tell us about the nature of the supermarket industry today?
--:-- Patrick Thomas: Yeah, the supermarket industry, it's a low-margin business.
--:-- Jessica Mendoza: They operate on really, really tight margins because they're always trying to make up even just a cent here, a cent here on different items.
--:-- Patrick Thomas: Their pricing strategies have to be so precise in order to make a profit.
--:-- Jessica Mendoza: But I think over the course of this, we've learned a lot about how our food is priced and how supermarkets actually function.
--:-- Patrick Thomas: I think Albertsons called it a zero-sum game in grocery.
--:-- Jessica Mendoza: If you are the high-priced guy in town and they can get a deal somewhere, they will leave you very quickly.
--:-- Patrick Thomas: And these companies have to figure out how to formulate against each other.
--:-- Jessica Mendoza: And it's an example of just how quickly things can change if you take your eye off the ball.
--:-- Patrick Thomas: Yeah.
--:-- Jessica Mendoza: It sounds like it's like the supermarket industry is more cutthroat than we maybe as consumers imagined.
--:-- Patrick Thomas: Yeah, I would definitely say so.
--:-- Jessica Mendoza: They're fierce competitors that spy on one another and try to get the best deal on certain products and sue each other after $20 billion mergers don't happen.
--:-- Patrick Thomas: You know, they're going to try and get their money back.
--:-- Jessica Mendoza: Ultimately, it might take some time, but consumers will be the judge on how this ultimately impacted their food prices over the next couple of years.
--:-- Patrick Thomas: Maybe we'll remember this being a situation where our prices never went up and a win for the people, or maybe what the companies had predicted will come to pass.
--:-- Jessica Mendoza: That's all for today, Thursday, December 12th.
--:-- Patrick Thomas: The Journal is a co-production of Spotify and The Wall Street Journal.
--:-- Jessica Mendoza: Additional reporting in this episode by Dave Michaels and Jinju Lee.
--:-- Patrick Thomas: Thanks for listening.
--:-- Jessica Mendoza: See you tomorrow.
--:-- [Sound of a commercial break]
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