Court Dismisses Antitrust Suit Against Kroger and Albertsons, Finding the Claims Exempt by the Non-statutory Labor Exemption
Brett Whitley, Associate
On February 6, 2026, the United States District Court for the District of Colorado dismissed a King Soopers employee’s (acting on behalf of a class) case,[1] pursuant to the non-statutory labor exemption, alleging The Kroger Company (“Kroger”) and Albertsons Companies, Inc. (“Albertsons”) unlawfully colluded during Kroger and United Food and Commercial Workers Local 7’s (the “Union’s”) negotiations of the renewal of their collective bargaining agreement. Specifically, the employee alleged Albertsons agreed with Kroger not to hire any of Kroger’s striking workers in an effort to hamper the Union’s bargaining strength with Kroger in violation of Colorado’s antitrust statute (the “Agreement”).[2] However, the Court determined that the Agreement was exempt from antitrust scrutiny and dismissed the case.
Brief Facts of Morgan
The Union’s members are employees of both Kroger and Albertsons. In 2022, the Union’s members who were employed by Kroger went on strike following its negotiations with Kroger on the terms of the Union’s collective bargaining agreement with Kroger. The Union’s strategy for putting additional pressure on Kroger to capitulate to its demands was to have its Union members that were striking work for Kroger’s competitor, Albertsons. However, according to the employee-plaintiff, Albertsons, in response to this “whipsaw” negotiation tactic, entered into the Agreement described above with Kroger during the strike, essentially taking away a key bargaining chip from the Union.
The Agreement provided value to Albertsons because any deal the Union and Kroger reached on the terms of the collective bargaining agreement would be a baseline for the negotiations that Albertsons and the Union were to begin shortly after the Union’s strike began. Therefore, a more favorable collective bargaining agreement between Kroger and the Union would likely result in a more favorable collective bargaining agreement between Albertsons and the Union.
The Kroger-based Union members’ strike eventually ended with agreed improvements to their collective bargaining agreement, such as wage increases and additional safety protections. However, the employee-plaintiff alleged that she and her coworkers were damaged because the Union was unable to obtain more favorable terms due to the Agreement, which was in violation of Colorado’s antitrust statute.
The Court’s Dismissal of the Case
In laying the groundwork for its dismissal of the case, the Court explained that “to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions,” via the non-statutory labor exemption. The Court reasoned that this exemption applied to the Agreement because it was a direct product of the collective bargaining process between not only Kroger and the Union, but also between Albertsons and the Union, given (a) the Union’s “whipsaw” negotiation tactic of harming Kroger through working for its competitor, Albertsons, and (b) the fact that Albertsons and the Union’s negotiations were to begin shortly after Kroger and the Union’s. Ultimately, it was the close nexus between the Agreement and the collective bargaining between the Union/Kroger/Albertsons that led the Court to determine the non-statutory labor exemption applied, barring the employee-plaintiff’s antitrust claims.
Employer Considerations
Morgan should not be viewed as giving Colorado employers a free pass to violate Colorado antitrust laws. Instead, Morgan demonstrates that in specific circumstances (e.g., if employers agree to address union negotiation tactics together relatively soon before, during, or after the collective bargaining process by entering no poach agreements such as the Agreement), then employers could avoid the significant ramifications of being liable for violating Colorado antitrust law. And further, just because possible antitrust violations are avoided, that does not mean that agreements among employers during collective bargaining do not violate other labor laws. In fact, employers could still face ramifications for entering into agreements, such as the Agreement here, in actions before the NLRB. Campbell Litigation is available to work with employers during the collective bargaining process to develop and implement legal strategies when negotiating with unions.
[1] Morgan v. The Kroger Co., et al., Case No. 1:25-cv-00837-GPG-CYC (D. Colo. Mar. 14, 2025).
[2] Colo. Rev. Stat. § 6-4-104 (“Entering into or engaging in any of the following in restraint of trade or commerce is illegal: (a) A contract; (b) A combination in the form of a trust or other form of combination; or (c) A conspiracy.”).