[co-author: Stephanie Kozol]*

On January 15, Washington Attorney General (AG) Bob Ferguson filed a complaint in King County Superior Court, seeking to block the merger of The Kroger Co. (Kroger) with its supermarket competitor, Albertsons Companies, Inc. (Albertsons).

The complaint seeks a permanent injunction to halt the merger nationwide. AG Ferguson argues that the transaction could lessen competition or create a monopoly in violation of Washington’s anti-trust laws because combining Washington’s two largest supermarket chains would potentially increase grocery prices for consumers. The office’s corresponding press release further emphasizes that Kroger and Albertsons together own more than half of all Washington supermarkets.

The merger of Kroger and Albertsons was a matter of national regulatory attention prior to the filing of this lawsuit. In late 2023, the Federal Trade Commission (FTC) held two public listening sessions to consider its enforcement options regarding the merger — one with Arizona AG Kris Mayes, and one with Colorado AG Phil Weiser. Following the Washington AG’s complaint, Kroger and Albertsons released a statement that they “remain in active and ongoing dialogue with the Federal Trade Commission and individual state Attorneys General regarding our proposed merger and divestiture plan.” Although the FTC and other state AGs have not publicly commented, this may indicate that the transaction remains under scrutiny by other regulators.

The Washington AG did not sue alongside other regulators, instead opting to sue first. This is notable because the FTC and state AGs often collaborate and move together on nationally significant enforcement matters. As we recently reported, AG Ferguson is particularly interested in bolstering penalties for violations of Washington anti-trust laws. His decision to file suit before other federal and state regulators further demonstrates his focus on anti-trust issues. In a broader sense, however, it speaks to the growing importance of individual state AGs who increasingly seek to compel national action.

Why It Matters

Each state AG weighs unique concerns regarding when or whether to proceed with enforcement. State AG enforcement actions on national issues — although often coordinated with other state and federal regulators — may still arise in piecemeal fashion. AG Ferguson’s move to file suit ahead of the FTC and other state AGs is illustrative of this potentially fragmented pattern of enforcement.

*Senior Government Relations Manager