Albertsons: Kroger was ‘reckless’ in letting key consultant shred notes ahead of $600M fee trial
Albertsons vs. Kroger
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While the Albertsons Companies’ deal to merge with Kroger has been in the dustbin of history for nearly two years now, there’s one item still outstanding: Albertsons’ allegation that Kroger owes it a $600 million fee for the unsuccessful deal.
Kroger hoped to buy most of Boise-based Albertsons and fold it into its existing operations, which includes Fred Meyer. But after two courts poured cold water on the deal in late 2024, Albertsons terminated the deal and sued Kroger for the breakup fee. A trial is approaching in Delaware in the case, and the two sides are making pre-trial arguments.
Albertsons is arguing that a key consultant for Kroger destroyed notes that would have helped its case, and wants a judge to assume that the missing notes would have helped Albertsons and hurt Kroger.
Notes shredded
Albertsons said Dr. David Weiskopf of firm Compass Lexecon consulted with Kroger on the economic analysis of the merger and deciding which stores to sell off to satisfy regulators’ demands. Despite the litigation, he didn’t save notes he took while talking to Kroger and its attorneys.
“Kroger admits it did nothing to preserve Compass Lexecon documents until October 2025, when Compass belatedly instituted a document hold,” Albertsons’ court filing said. “By then, Kroger had anticipated this litigation for almost two years… Instead, Kroger recklessly sat on its hands as Weiskopf followed his ‘normal’ practice of shredding the notes he ‘definitely’ took on calls with Kroger and its antitrust counsel.”
Albertsons said Kroger waited and waited before it told Weiskopf to save his records, which he said he shredded as standard practice.
“Kroger sat on that knowledge until October 2025 — over eighteen months after Kroger anticipated this litigation, ten months after Albertsons filed its complaint, and seven months after Kroger disclosed Weiskopf’s ‘principal role’ in the merger,” Albertsons’ filing said. “Those undisputed facts make it obvious that Kroger was ‘consciously aware’ of a ‘substantial and unjustifiable’ risk that its failure to issue Weiskopf a litigation hold would ’cause or allow evidence to be spoiled.'”
A key contention in Albertsons’ case against Kroger has been that it dragged its feet on providing a list of stores it planned to spin off to third-party C&S Wholesale grocers, which ended up attracting the antitrust lawsuits from the FTC and a group of attorneys general from U.S. states, which ultimately derailed the deal. Albertsons said internal notes show Kroger’s legal teams pushed to keep the list of stores “as low as possible,” while admitting that selling more stores could have won FTC approval
“Produced evidence shows that Kroger meddled with Compass’s economic analyses to ensure that the resulting divestiture packages would serve Kroger’s financial goals instead of maximizing the merger’s chance of antitrust approval,” Albertsons’ attorneys wrote. “Kroger’s lead antitrust attorney (noted) ‘there seems to be a number (of stores) under 650 that should work with the FTC’ but ‘Kroger isn’t so sure about wanting to increase the number.'”
Albertsons said Weiskopf’s notes could have helped corroborate “existing evidence regarding the instructions Kroger gave Compass in constructing its last three divestiture packages.”
Kroger told the court it didn’t do anything wrong because Weiskopf was an outside consultant and simply followed his usual practice of shredding his notes, and that it didn’t constitute intentionally destroying evidence. The company also argues Albertsons wasn’t hurt by the document shredding because Kroger produced numerous emails, economic data, and records that capture what was discussed on those calls.
Deleted records aren’t new to the years-long dealings between the two grocery giants. During a 2024 federal trial in Portland, former Albertsons CEO Vivek Sankaran admitted he changed an iPhone setting that caused as many as 1,700 text messages related to the merger to be deleted. The Federal Trade Commission made a similar motion asking the judge to make an “adverse inference” about the text, but she ultimately declined.
Vice Chancellor Lori W. Will has not yet ruled on Albertsons’ allegation against Kroger
A trial date has not yet been set, but pretrial briefs are being filed by both sides, with a possible trial this fall.