The Ninth Circuit weighed whether grocery consumers who challenged the Kroger-Albertsons merger can recover attorney fees after regulators, not their lawsuit, blocked the deal.
Grocery consumers who challenged Kroger's $24.6 billion proposed acquisition of Albertsons asked the Ninth Circuit on Tuesday to reverse a lower court's refusal to award attorney fees, arguing their private antitrust lawsuit contributed materially to killing the deal even though federal and state regulators formally blocked the merger before the case reached a final judgment [1]. Plaintiffs' counsel contended that the district court misapplied the mootness doctrine by crediting government enforcement actions, not the private litigation, as the sole cause of the merger's collapse [1].
The appeal arises from the consolidated private antitrust litigation brought by a proposed class of grocery consumers against Kroger and Albertsons in federal court. The district court dismissed the case as moot after the Federal Trade Commission and separate state enforcers secured injunctions blocking the transaction, and the deal subsequently fell apart. Plaintiffs then sought attorney fees on the theory that their litigation constituted a substantially prevailing position, a threshold the district court declined to reach once it ruled the controversy had ended by operation of government action [1]. The Ninth Circuit panel heard argument Tuesday on that narrow but consequential question.
The core legal tension is whether a private plaintiff can claim "substantially prevailed" status, and thus fee-shifting under the Clayton Act, when the outcome it sought was achieved through parallel government enforcement rather than a court order in the private case. That question cuts at the intersection of mootness doctrine and private antitrust standing. If the Ninth Circuit holds that a merger's collapse, for whatever reason, can support a fee award in a related private suit, it would lower the practical barrier for plaintiffs' firms to pursue merger challenges knowing they may recover fees even if government action renders their case technically moot. A contrary ruling would reinforce the existing asymmetry between well-resourced government enforcers and private litigants in merger oversight [1].
The panel took the matter under submission at the close of argument Tuesday. No timeline for a decision was announced. The ruling, when issued, will carry significant weight for plaintiffs' antitrust bars evaluating whether to file private merger challenges alongside government investigations, and for defense counsel advising acquiring companies on litigation exposure in large transactions [1].