Court of Appeals Hears Arguments in State v. Kroger Over $28M Fee Award and Injunction

Matthew Wolf, counsel for Kroger, told the Washington Court of Appeals that the trial court’s injunction was unprecedented and that the $28,000,000 fee award could not be sustained if the injunction is found unconstitutional. "Prior to this case, no single state had ever used its own antitrust law to obtain an injunction blocking an out of state merger," Wolf said, arguing the award was neither lawful nor reasonable.

Assistant Attorney General Paula Pera countered that Kroger and Albertsons do not dispute violating Washington law and that their merger would have raised the price of essential groceries by "hundreds of millions of dollars every year for Washingtonians." Pera asked the court to affirm the trial court’s orders and to award the state its fees and costs on appeal. The panel pressed both sides on whether the constitutional questions were moot now that the merger was abandoned and on how courts should treat recoverable fee components such as expert and e‑discovery costs.

The arguments focused on three discrete issues: (1) whether the injunction as issued exceeded the state’s constitutional authority; (2) whether components of the fee award — including expert witness fees and e‑discovery — are recoverable under the statute cited by the parties; and (3) whether procedural safeguards (such as in‑camera review) are required when fee records are redacted. The court took the matter under advisement at the close of oral argument.