Judge Rejects Kroger and Albertsons’ Request for FTC Market Data

Judge Rejects Kroger and Albertsons' Request for FTC Market Data

An Oregon federal judge denied Kroger and Albertsons’ requests for more information on the markets at issue in the Federal Trade Commission’s ongoing attempt to block their merger, saying the companies’ request is premature and excessively broad.

In a motion to compel in May, the supermarket chains jointly requested the underlying basis for the FTC’s market share and concentration figures — including the Herfindahl-Hirschman Index (HHI), a measure for market competition and concentration, and boundaries for each geographic market the FTC is claiming would be harmed by the merger.

But on Friday, U.S. District Judge Adrienne Nelson said some of the interrogatories were more appropriate for the expert discovery phase while others were simply too broad and would require too much attorney work product for her to grant.

“Market share calculations and methodologies constitute legal conclusions and are likely to provide insight into the mental impressions of attorneys,” Judge Nelson said Friday. “The market shares themselves, as well as any HHI calculations, are the product of legal and economic analyses performed by counsel to the United States … in preparation for this litigation. Such analyses are precisely the type of ‘conclusions’ which Rule 26(b)(3)(B) prohibits a court from ordering disclosed.”