Antitrust Law Daily Wrap Up, ACQUISITIONS & MERGERS—9th Cir.: Private class action to block Kroger-Albertsons proposed acquisition dismissed, (Jun 12, 2026)

By Donielle Tigay Stutland, J.D.

The plaintiffs were also not entitled to attorney fees.

The United States Court of Appeals for the Ninth Circuit has affirmed the dismissal of a private antitrust lawsuit brought by a group of individuals who sought to prevent a proposed multibillion dollar acquisition in the U.S. supermarket industry whereby Kroger Co. would acquire Albertsons Companies, Inc. The Ninth Circuit affirmed the district court’s dismissal of the suit as moot, given that the companies formally abandoned the merger. The district court’s denial of Plaintiffs’ motion for attorney’s fees was also affirmed (Whalen v. Albertsons Companies, Inc., No. 25-1324 (9th Cir. Jun. 11, 2026)).

Background. In 2022 Kroger Co. and Albertsons Companies, Inc., America's two largest supermarket chains, had agreed to an agreement whereby Kroger would acquire Albertsons for more than $24 billion in cash. Anticipating antitrust concerns over the proposed deal, Kroger and Albertsons included in the acquisition plan provision for the divestiture of more than 600 yet-to-be-designated Albertsons retail stores that otherwise would be competing in the same geographical markets with the existing Kroger stores. The FTC and several states filed parallel antitrust actions to block the merger.

Three months later, on February 2, 2023, a group of 25 individuals who reside in various states brought this private antitrust class action in federal district court against Kroger, Albertsons, and Cerberus under the Sherman Act and the Clayton Act, praying for (1) injunction against the proposed acquisition by Kroger of Albertsons; (2) voiding the conspiracy and combination "to shut down Albertsons"; and (3) "disgorgement of any unlawful payments coerced from Albertsons.” On March 11, 2024, the district court issued an order that stayed Plaintiffs’ lawsuit pending the outcome of the separate FTC action. In December 2024, the FTC obtained a preliminary injunction that blocked the merger.

Within days of the injunction, Kroger and Albertsons formally abandoned the merger, terminated the Merger Agreement and withdrew their regulatory filings with the FTC. The FTC and the states then dismissed their lawsuits. The supermarkets then moved to dismiss the private class action suit as moot. The district court granted the motion to dismiss and denied the motion for attorney’s fees. Plaintiffs appealed.

Mootness. The Ninth Circuit affirmed and found that the district court did not err in finding the case moot. The court outlined that the Plaintiff’s sole objective was to enjoin the execution of the Merger Agreement. Once the supermarkets formally abandoned the merger and withdrew their regulatory filings, “there [was] no longer a merger agreement to challenge.” Wrote the court, “Because Kroger and Albertsons have abandoned that agreement,” it is “impossible for a court to grant any effectual relief.”

Attorney fees. The Ninth Circuit also determined that the Plaintiffs were not entitled to attorney fees under the Clayton Act as parties who have “substantially prevail[ed].” The Plaintiffs asserted that the court had determined that in separate proceedings the Merger Agreement likely violated the Clayton Act, thereby producing the result Plaintiffs sought. However, the Ninth Circuit stressed that in order to qualify as a “prevailing party,” a party must obtain relief pursuant to “a court-ordered change in the legal relationship between the plaintiff and the defendant.” Given that the district court denied every motion Plaintiffs filed and entered final judgment against them, the Ninth Circuit found that they did not “prevail.”

Claims Against Cerberus Capital Management, L.P. The court also indicated that the Plaintiffs forfeited their claims against Defendant Cerberus Capital Management, L.P. The court noted that the Plaintiffs’ opening brief only mentioned Cerberus in one sentence, in its “Statement of Jurisdiction,” and an opening brief must “adequately develop” an argument to preserve it.

The Case is No. 25-1324.

Judge: Sanchez, G.

Attorneys: Lawrence G. Papale (Law Offices of Lawrence G. Papale) for Christine M. Whalen. Edward Hassi (Debevoise & Plimpton, LLP) for Albertsons Companies, Inc.

Companies: Albertsons Companies, Inc.

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