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What happens to Colorado’s Kroger-Albertsons merger trial if other cases finish first

The state's lawsuit was the last to kickoff its trial and another judge is set to rule soon.

The proposed $25 billion merger deal between the parent companies of King Soopers and Safeway is facing three lawsuits across the country at once – including in Colorado.

And a decision may come from a judge in the case brought forth by federal regulators in Oregon soon.

The case brought by Colorado’s Attorney General Phil Weiser was the last trial to begin, which started Monday, and the state’s litigation has many crossovers with the other Kroger-Albertsons lawsuits as some witnesses are testifying for a second or third time on the subject.

During the third day of trial Wednesday, state attorneys questioned the CEO of C&S Wholesale Grocers Eric Winn, the planned buyer of 91 Albertsons stores in Colorado if the merger goes through, and commented at one point how Winn knew the drill of questioning after going through similar questioning in the other trials.

It was one of several moments in the trial so far showing how similar Colorado’s case is to the others as the state aims to argue the national merger would have adverse local effects on the grocery marketplace.

The trial is scheduled to end by Oct. 18.

The grocers’ legal teams also explained at the beginning of the trial to Denver District Court Judge Andrew Luxen that many of their legal team will be flying between Washington and Colorado, apologizing for having missing members of their team occasionally as they battle both trials.

Earlier this year, Kroger filed a motion to toss the case in Colorado, arguing the state’s case was redundant to the lawsuit filed by federal regulators. Luxen dismissed the motion in June saying Colorado had a right to enforce its own antitrust legislation regardless of similar federal cases.

Now the grocers are on the defense in three cases to prove their merger is essential in an evolving grocery landscape to compete against Walmart, Amazon and Costco, and would lower prices for consumers.

The case brought by Weiser’s Washington counterpart, Attorney General Bob Ferguson, began Sept. 16 and is set to last three weeks. This week, grocery executives from Costco Wholesale, WinCo and Walmart testified in Washington, according to a report from food retail industry publication Progressive Grocer, as these court cases debate how the grocery landscape has changed with the rise of online commerce and big-box retailers.

Meanwhile, the first trial that began in an Oregon court for a case brought forth by the Federal Trade Commission ended Sept. 17. It’s not clear when U.S. District Judge Andrienne Nelson will rule on whether or not to grant a permanent injunction to block the merger.

Nelson said she’d work “expeditiously” to make a decision.

Meanwhile, Colorado’s Attorney General said in a press conference before the state’s trial began that he’d continue his pursuit to stop the merger until the grocers back out despite the other court rulings. Those cases could go to appeals, he said, so Colorado’s case will stay in trial unless the grocers accept any court rulings to place an injunction.



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