Oct 27, 2026 · 44 min
Election lawsuits meet a $9.3 billion merger fight
Election Lawsuits and Supermarket Deal Trial
The episode connects contested election authority with a high-stakes test of how merger partners must pursue regulatory approval and defend their deal strategy.
- 1Richard Brafalt questions the Justice Department’s legal basis in California and Alaska election litigation, including its implications for a close Senate result.
- 2Harry First examines whether Kroger met its best-efforts obligations after regulators challenged the proposed Albertsons merger.
- 3The Delaware trial turns on divestiture strategy, executive decision-making, possible bad faith, and Albertsons’ $9.3 billion damages claim.
Don't miss
Harry First explains why the case may turn on whether Kroger’s conduct departed sharply from ordinary merger-negotiation practice, rather than on a single smoking gun.
The brief
Richard Brafalt questions the Justice Department’s authority to intervene in California election administration and argues the Alaska lawsuit may help build grounds to challenge a close Senate result.
The supermarket segment shifts to Albertsons’ $9.3 billion damages claim after a federal court blocked its $24.6 billion merger with Kroger.
Harry First examines whether Kroger’s proposed divestitures and negotiations showed genuine best efforts, or whether the company had already decided the deal was no longer worth pursuing.
The sharpest dispute concerns who should have driven the divestiture strategy: antitrust counsel alone, or senior executives able to explain the transaction’s commercial logic to regulators.
The Delaware trial also tests whether Kroger can blame an aggressive Federal Trade Commission, or whether evidence of abandonment and bad-faith negotiation supports Albertsons’ claim.
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