Southern Glazer's Wine and Spirits LLC urged a California federal judge Friday to give it key material from the Federal Trade Commission's successful challenge to the Kroger-Albertsons merger, sparring with the FTC on arguments that the agency is contradicting itself in a price discrimination lawsuit.
The dispute comes down to who competes and who doesn't in the FTC's Robinson-Patman Act case, which depends on showing Southern Glazer's discriminated, sale by sale, in how it priced alcohol between retailers in direct competition with one another.
In its half of a joint filing Friday with the FTC, Southern Glazer's said the FTC is arguing direct corollaries between companies that shouldn't be considered direct competitors — pairing a Publix and a nightclub, for instance — in contradiction to how the agency showed that Kroger Co.'s $24.6 billion planned purchase of Albertsons Cos. Inc. risked dramatic consolidation. In the merger case, the FTC narrowed the market only to supermarkets by excluding Whole Foods and other premium stores.
"Now, having blocked a major merger using evidence that various retailers do not compete, the FTC seeks to sweep its prior assertions under the rug and argues that those very same retailers do compete in this case. It appears the FTC may argue that retailers should be presumed to compete with one another simply because each sells wine and spirits in some geographic proximity," Southern Glazer's said. "The factual material SGWS seeks from Kroger, as well as the FTC's own arguments, clearly show that competition between specific retailers cannot be assumed — and in any case is rebutted."
The FTC won a preliminary block on the supermarket merger — which the companies promptly abandoned — in December 2024, winning an Oregon federal court ruling that the deal "would lead to undue market concentration in multiple geographic markets in both the supermarkets and large format stores markets that would presumptively lessen competition."
Southern Glazer's now wants the expert reports from one of the FTC's key experts, Nicholas Hill, from that case along with any deposition transcripts involving Hill as well as all trial demonstratives on competition between retailers.
The goal: shore up its defense against the first RPA case the FTC has brought in decades — now the only one after the Republican-controlled agency dropped a second suit against Pepsi — alleging that the company, which sells one 1 of every 3 U.S. bottles of wine and spirits, routinely charges its small, independent retail clients up to 67% more than what large chains like Costco, Walmart, Total Wine and national grocers have to pay.
The case, which the all-GOP FTC may be stuck with despite distaste for the suit after U.S. District Judge Fred W. Slaughter refused dismissal in April, needs to show discrimination in "paired transactions" between companies competing directly for the same customers. Southern Glazer's says the more than 17 million pairings the FTC has produced come up short.
"For example, by pairing transactions, the FTC's spreadsheets claim that, when it comes to the sale of wine and spirits, Binny's (a chain liquor store) competes with Bed Bath & Beyond, a nightclub competes with a Publix, and Costco competes with multiple different hotels," the distributor said.
"In one of the few substantive answers the FTC's corporate representative provided in the recent Rule 30(b)(6) deposition of the agency, the FTC confirmed it is alleging that these retailers likely compete," it continued. "Even setting aside particularly egregious examples like these, the FTC's spreadsheets purport to pair many retailers that do not actually compete because they provide very different consumer experiences, offer different products or services, and meet different consumer needs. In other words, they attract different customers."
In Southern Glazer's' telling, those assertions run counter to merger case arguments asserting that Kroger and Albertsons operated in unique "channels" distinguishing them from premium natural and organic stores like Whole Foods and Sprouts Farmers Market, as well as club stores like Costco and Sam's Club.
"The FTC argued in Kroger that Sprouts targets different customers than supermarkets like Kroger or Albertsons. Now, the FTC has paired sales to Sprouts against sales to Costco and Safeway (which is owned by Albertsons)," it said.
The FTC did not immediately respond late Monday to a request for comment. But the agency had plenty of room in its part of the filing Friday to push back, arguing that Southern Glazer's is trying to make an apples and oranges comparison between a merger case and an RPA case, even though they are considered under different standards and different fact patterns — Southern Glazer's countered that its defense is about factual analysis of consumer behavior rather than a legal one.
According to the FTC, the RPA case, set for a jury trial in October 2027, requires geographic proximity between customers buying goods of the same grade and quality at roughly the same time and operating at roughly the same level on the supply chain.
"By contrast, the Kroger merger evaluated whether a proposed merger between the two largest supermarket chains in the United States would substantially lessen competition under Clayton Act Section 7 merger principles both across the full basket of food, grocery, and household items sold in a supermarket and in the labor market for grocery store workers," the agency said.
The FTC argued that the merger case turned on whether the combined firm would be able to raise prices without driving away so many customers that it would lose money.
"This inquiry simply has no bearing on a secondary-line price discrimination claim under the RPA. Indeed, unlike merger cases, RPA plaintiffs need not plead or prove a defined relevant product or geographic market," the FTC said.
The parties also fought over burden, with the FTC contending that it would have to seek permission from the third parties in the Kroger case whose confidential information was implicated.
Southern Glazer's countered that both cases are governed by protective orders that would allow the material to be produced without compromising confidentiality. And it pushed back on the FTC's assertion that granting the peek into the expert reports would risk possibly turning over far more information.
"Although SGWS may well be entitled to a broader set of documents from the Kroger litigation, SGWS narrowed its request to initially seek only the enumerated documents in an effort to minimize any burden on the agency and to avoid the need to file this motion," it said.
"Yet, somehow, that generated a new objection from the FTC — the agency then objected that SGWS has not promised that it would not later seek more documents from Kroger. This objection makes no sense. Nothing requires SGWS to identify every last document it may seek all at once," it continued. "Such a rule would discourage parties from tailoring their discovery requests more narrowly to minimize any burdens — precisely the sort of effort SGWS attempted to undertake here. While SGWS understands that the FTC would prefer not to go through multiple rounds of related productions, the agency cannot have it both ways."
The FTC is represented in-house by Christina J. Brown, Dana F. Abrahamsen, Daniel R. Blauser, Daniel M. Chozick, Kathleen M. Clair, Joseph M. Conrad, Stephanie A. Funk, Geoffrey M. Green, Jordan T. Klimek, Patricia M. McDermott, Karen A. Mills, Ross E. Steinberg and John D. Jacobs.
Southern Glazer's Wine and Spirits LLC is represented by Tammy A. Tsoumas, Craig S. Primis, Matthew S. Owen, T.J. McCarrick, Ross Powell and Daniel K. Zach of Kirkland & Ellis LLP.
The case is Federal Trade Commission v. Southern Glazer's Wine and Spirits LLC, case number 8:24-cv-02684, in the U.S. District Court for the Central District of California.
Jan 26
Deal Summary
