SecProbe.io

CORRESP
1
filename1.htm

THE KROGER CO.

1014 VINE STREET   •
CINCINNATI, OHIO  45202-1100

  PAUL W. HELDMAN

  EXECUTIVE VICE PRESIDENT,

  SECRETARY AND

  GENERAL COUNSEL

  513-762-4421

  FAX
  513-762-4935

  FAX 513-762-4554

December 11, 2008

VIA
EDGAR CORRESPONDENCE

H.
Christopher Owings

Assistant
Director

Securities
and Exchange Commission

Division
of Corporation Finance

100
F Street, N.E.

Washington,
DC 20549

  Re:

  The
  Kroger Co.

  Form 10-K
  for Fiscal Year Ended February 2, 2008, filed April 1, 2008

  Definitive
  Proxy Statement on Schedule 14A, filed May 15, 2008,

  File
  No. 001-00303

Dear
Mr. Owings:

The
Kroger Co. submits this letter in response to the follow up comments from the
Staff of the Division of Corporation Finance of the SEC, received by letter
dated October 16, 2008 relating to the above referenced definitive proxy
statement.  Set forth below are the Staff’s
comments followed by our responses.

Definitive
Proxy on Schedule 14A

Compensation
Discussion and Analysis, page 15

1.               We note your
response to comment 3 in our letter dated July 31, 2008.  As requested in our initial letter, please
provide us with your intended disclosure for future filings that discusses the
key considerations of individual performance.

Company
Response:

Our compensation programs are not structured and do
not operate in a manner that would typically allow the Company to isolate or
identify the specific weighting given to an element of individual performance
or the effect of that assessment on a specific element of compensation.  In addition, as disclosed in

the proxy statement, assessments of individual
performance are only one factor taken into account in the subjective process of
determining salary, with factors such as tenure, internal pay equity and peer
group compensation also being evaluated.
Accordingly, we will revise the disclosures on pages 18 and 21 to
more clearly state that the Committee’s assessment of individual performance
for purposes of setting salary and equity awards involves subjective
qualitative assessments, and that the CEO’s individual performance assessments
that affect his recommendations to the Committee likewise are subjective.  We expect this disclosure would read
substantially as follows, assuming that the Committee does not change this
aspect of its processes:

In
establishing NEO salary compensation, the Compensation Committee, in the case
of the CEO, and the CEO, in the case of the other NEOs, subjectively
determines, without the use of performance targets, individual performance in
the following areas:

·  leadership;

·  contribution to officer group;

·  achievement of established
objectives, to the extent applicable;

·  decision-making abilities;

·  performance of the areas or
groups directly reporting to the officer;

·  increased responsibilities;

·  strategic thinking; and

·  furtherance of Kroger’s core
values.

When a specific factor (such as achievement of
a specific goal or performance of a group reporting to the executive) can be
identified as having had a material effect on those decisions, we will also
disclose that factor and its effect on compensation.  The Committee and CEO did not identify any
specific individual performance elements as material considerations for
compensation reported in our 2008 proxy statement, and have not identified any
such factors with respect to compensation decisions made to date for 2009
compensation, and therefore we are not in a position to provide sample
disclosure.

2.               We note your
response to comment 4 in our letter dated July 31, 2008.  Please describe the types of qualitative
factors the compensation committee considers.
Please provide us on a supplemental basis a detailed analysis regarding
how disclosure of each of the metrics would cause you competitive harm.  For example, please describe in detail which
portions of bonuses are tied to the Customer 1st plan.  Also describe how precise performance of the
company against specific measures of the Customer 1st plan could “guide
competitors to their own strategies to target these areas to the detriment of”
you and your shareholders.

Company
Response:

The
compensation committee’s discretion to take into account qualitative factors in
determining final bonus compensation was
discussed on page 19 of the 2008 proxy statement.  Its discretion to adjust bonuses downward is
not subject to a limitation on the types of qualitative factors that can be
taken into account.  As also disclosed on
page 19 of the 2008 proxy statement, the committee also retains discretion
to adjust targets under the bonus program in cases of unusual or
extraordinary circumstances.  For
example, in setting the annual cash bonus payout for 2007, and as disclosed at page 19
of the proxy statement, the Committee and the board considered the effect of
labor unrest at a Kentucky distribution center and adjusted the bonus payout to
exclude that effect.  The Committee and
the board concluded that to do otherwise would create a financial disincentive
to taking action that management believes is in the best interests of the
Company and its shareholders.  The Committee
and the board may consider other factors, in their discretion, that could
result in bonus payouts that differ from those based solely on quantitative
factors.  To the extent that any 2008
bonus payouts are adjusted as a result of qualitative factors, the Company will
disclose that fact and the qualitative factors considered.

The analysis that you have requested regarding metrics
has been omitted from this letter and is being furnished separately to the
Staff on a supplemental basis with confidential treatment requested pursuant to
17 C.F.R. § 200.83 for certain portions thereof.

The Company acknowledges:

·                  The
Company is responsible for the adequacy and accuracy of the disclosure in the
filing;

·                  Staff
comments or changes to disclosure in response to staff comments do not
foreclose the Commission from taking any action with respect to the filing; and

·                  The
Company may not assert Staff comments as a defense in any proceeding initiated
by the Commission or any person under the federal securities laws of the United
States.

If
you should have any questions or require any further information regarding this
matter, please contact the undersigned at

513-762-4421.

Sincerely,

/s/
Paul Heldman

  cc:

  Ronald
  E. Alper, Staff Attorney

  Ellie
  Bavaria, Special Counsel

  David
  B. Dillon

  J.
  Michael Schlotman

  M.
  Elizabeth Van Oflen

  Bruce
  M. Gack

  Christine
  S. Wheatley