Kathy Osborn Speaks With Indiana Lawyer on the FTC’s Lawsuit to Block a Grocery Store Merger

Litigation partner and antitrust team co-chair Kathy Osborn spoke with Indiana Lawyer on the FTC’s lawsuit to block a grocery store merger. Osborn told the publication she isn’t surprised by the lawsuit and that the FTC complaint’s focus on labor competition is unique, explaining that traditional antitrust lawsuits focus on the idea that the more choices consumers have, the lower their prices will be.

Osborn said the FTC allegations highlight the importance of business personnel limiting what they say about competitors, market shares and competition in emails, earnings calls and other communications. “For example, the FTC complaint leverages comments made by the parties about them being one another’s number one competitor,” she said.

A preliminary injunction hearing for the FTC lawsuit is set to begin on Aug. 26 in Portland, Oregon. Osborn said the grocery stores will likely argue that big box stores are the top competitive threat to their businesses. As far as a legal timeline, she expects it to take several months to more than a year before the case is resolved in court. She also added that, for preliminary injunctions to be granted, there needs to be shown that there is a high likelihood of success for the lawsuit, which requires a lot of evidence.

If a judge grants a preliminary injunction, it is often the case that the parties abandon the merger, Osborn said. Should the case go to trial, she expects a decision will likely be rendered in 2025.