Here's what to expect from the Kroger-Albertsons trial in Oregon

A federal court judge in Portland, Oregon heard opening arguments Monday in a case challenging the merger of grocery giants Kroger and Albertsons. The hearing is critical, and could decide the merger’s direction.

“Typically, whoever wins at this preliminary injunction stage tends to win the overall war,” said Douglas Ross, who teaches antitrust law at the University of Washington.

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The Federal Trade Commission, along with eight other states and the District of Columbia, are asking the judge to pause the $24.6 billion deal while an administrative hearing in Washington D.C. determines a bigger question: Is the merger even lawful?

KUOW spoke with Ross about the Oregon hearing and other pending litigation related to the merger. The following conversation was edited for clarity.

Why did the FTC file two suits in two different jurisdictions?

Ross: “The FTC would prefer to stop a merger by suing in its own administrative process and getting an order from an administrative law judge which is then taken to the full Federal Trade Commission, the five commissioners who review it and decide what to do next.

The problem is, it takes months, if not a year or two, and until Federal Trade Commission has issued its final order, they can’t stop the parties from going forward with their merger.

In the meantime, they can ask the parties to cooperate and postpone the merger while the litigation goes on in Washington D.C., and if the parties don't cooperate, then they're forced to go into federal court and get an order blocking the merger. So that’s what they’re doing.”

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The trial is expected to last three weeks. The FTC says Kroger’s acquisition of Albertsons is anticompetitive and will lead to higher prices, hurting consumers. The companies defend the deal, saying the merger would benefit shoppers while helping it compete against rivals like Walmart and Costco.

How will the Oregon judge determine whether or not to pause the merger?

Ross: “Fundamentally, it’s a balance between how likely is it that the FTC will win its case, and what’s the public interest here in letting the merger go through before the legal proceedings are done, and what’s the public interest in stopping the merger from going through until the proceedings are done.”

If the Oregon court agrees with the FTC and the ruling is upheld on appeal, the case goes back to D.C. to decide the fate of the merger. But there’s a new wrinkle.

Kroger recently filed a lawsuit in Ohio, arguing the FTC’s administrative process in D.C. is unconstitutional. Why is Kroger taking this strategy?

Ross: “Over the last decade or so, the United States Supreme Court has thrown into question a number of administrative processes. And Kroger is looking at what the U.S. Supreme Court has said in the last several years, and one case in particular that was decided just last term … [The] Supreme Court said in that particular case, having an administrative proceeding deprived the plaintiff of its right to a jury, a jury trial under the Seventh Amendment. Kroger is trying to take that precedent and say that, in general, you cannot adjudicate private rights such as the contract, the contract it's entered into to acquire Albertsons before an administrative tribunal.”