SEC Company Response from KROGER CO (KR) (CIK 0000056873) (KR) — Jun 28, 2013
KROGER CO (KR) (CIK 0000056873)
Date: June 28, 2013 · CIK: 0000056873 · Accession: 0001104659-13-052266
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 001-00303
Referenced dates: August 4, 2010, December 11, 2008, January 8, 2009, July 15, 2010, June 20, 2013, June 21, 2010, October 16, 2008
Letter
Division of Corporation Finance Filed April 2, 2013 Definitive Proxy Statement on Schedule 14A Filed May 14, 2013 File No. 001-00303
Dear Ms. Ransom:
We submit this letter in response to the comment from the staff of the Division of Corporation Finance of the SEC, received by letter dated June 20, 2013, pertaining to the referenced Form 10-K and definitive proxy statement. The staff’s comment is reproduced below, followed by our response.
Definitive Proxy Statement filed on Schedule 14A
Performance —Based Annual Cash Bonus, page 22
1. We note that you have omitted from the tables on pages 23 and 26 your Strategic Plan targets and the actual results “as they are competitively sensitive.” We note a similar omission for your Associate Engagement component of your long-term performance based plan. Please disclose the specific targets and the actual results related to the Strategic Plan and Associate Engagement or provide us with your analysis as to why it is appropriate to omit this information pursuant to Instruction 4 to Item 402(b) of Regulation S-K. If disclosure of this information would cause competitive harm, please discuss how difficult it will be for the executive or how likely it will be for the registrant to achieve the various targets. For additional guidance, please see Question 118.04 of our Compliance and Disclosure Interpretation on Regulation S-K available on our website at www.sec.gov.
Kroger Response
Kroger’s strategic plan is sometimes referred to as its Customer 1st strategy, and its associate engagement measures are part of a business strategy often referred to as Associate 1st. Kroger refers the staff to its letter dated December 11, 2008, in response to the staff’s comment letter dated October 16, 2008 (the “2008 Letter”), and its letter dated July 15, 2010, in response to the staff’s comment letter dated June 21, 2010 (the “2010 Letter”), both pertaining to the same subject matter. Kroger’s response to the 2010 Letter referred the staff to its earlier response to the 2008 Letter. Kroger sought confidential treatment for its response to the 2008 Letter, and received from the staff a closure letter dated January 8, 2009, for the 2008 Letter. Kroger received from the staff a closure letter dated August 4, 2010 for the 2010 Letter. Continued confidential treatment of these performance metrics and the manner in which a payout is calculated is warranted as they remain confidential commercial and financial information that, if disclosed, could be used by competitors in a manner that would cause substantial competitive harm to Kroger.
As we have discussed in our CD&A, at page 26, achievement of the components of the plans becomes exceedingly more difficult each year due to the compounded nature of required improvement. For example, for its long-term performance based plan for which payout was earned for the period of 2010-2012, Kroger saw no improvement in its strategic plan, resulting in no payout for that metric, and Kroger saw 3 units of improvement in its associate engagement, resulting in a payout of 6% for that metric.
We acknowledge that:
· 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 filings; 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 have any questions or require any additional information regarding this matter, please contact me at 513-762-1482.
Sincerely,
/s/ Bruce M. Gack
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CORRESP 1 filename1.htm THE KROGER CO. · LAW DEPARTMENT · 1014 VINE STREET · CINCINNATI, OHIO 45202-1100 PAUL W. HELDMAN TELEFAX NUMBER PATRICIA T. ASH EXECUTIVE VICE PRESIDENT, 513-698-1850 PAUL W. PARMELE SECRETARY AND STEPHANIE GEPHARDT GENERAL COUNSEL WRITER’S DIRECT DIAL NUMBER JENNIFER K. GOTHARD 513-762-1482 RICK J. LANDRUM BRUCE M. GACK STACEY HEISER VICE PRESIDENT AND KELLY L. REBLIN ASSISTANT GENERAL COUNSEL JEFF VANWAY ERICA S. PONTIUS MARTHA CUTRIGHT SARRA HILARY VOLLMER VICE PRESIDENT AND BEAU C. SEFTON CHIEF ETHICS AND FRANCES A. TUCKER COMPLIANCE OFFICER NATHAN H. BROWN BRYN T. LORENTZ CHRISTINE S. WHEATLEY MICHAEL MAJBA VICE PRESIDENT AND DAVID R. OWENS SENIOR COUNSEL SARA H. SUDKAMP J. PHILLIPS PUGH, INVESTIGATOR DOROTHY D. ROBERTS, PARALEGAL ERIK B. LUTSON, PARALEGAL MARGARET E. WAGNER, PARALEGAL VENESSA C. GRIBBLE, PARALEGAL CYNTHIA A. LUKEN, PARALEGAL STEPHANIE S. MORRIS, PARALEGAL RENEE R. CIPRIANI, PARALEGAL June 28, 2013 Mara L. Ransom Assistant Director U.S. Securities and Exchange Commission Division of Corporation Finance 100 F Street, N.E. Washington, DC 20549 RE: The Kroger Co. Form 10-K for the Fiscal Year Ended February 2, 2013 Filed April 2, 2013 Definitive Proxy Statement on Schedule 14A Filed May 14, 2013 File No. 001-00303 Dear Ms. Ransom: We submit this letter in response to the comment from the staff of the Division of Corporation Finance of the SEC, received by letter dated June 20, 2013, pertaining to the referenced Form 10-K and definitive proxy statement. The staff’s comment is reproduced below, followed by our response. Definitive Proxy Statement filed on Schedule 14A Performance —Based Annual Cash Bonus, page 22 1. We note that you have omitted from the tables on pages 23 and 26 your Strategic Plan targets and the actual results “as they are competitively sensitive.” We note a similar omission for your Associate Engagement component of your long-term performance based plan. Please disclose the specific targets and the actual results related to the Strategic Plan and Associate Engagement or provide us with your analysis as to why it is appropriate to omit this information pursuant to Instruction 4 to Item 402(b) of Regulation S-K. If disclosure of this information would cause competitive harm, please discuss how difficult it will be for the executive or how likely it will be for the registrant to achieve the various targets. For additional guidance, please see Question 118.04 of our Compliance and Disclosure Interpretation on Regulation S-K available on our website at www.sec.gov. Kroger Response Kroger’s strategic plan is sometimes referred to as its Customer 1st strategy, and its associate engagement measures are part of a business strategy often referred to as Associate 1st. Kroger refers the staff to its letter dated December 11, 2008, in response to the staff’s comment letter dated October 16, 2008 (the “2008 Letter”), and its letter dated July 15, 2010, in response to the staff’s comment letter dated June 21, 2010 (the “2010 Letter”), both pertaining to the same subject matter. Kroger’s response to the 2010 Letter referred the staff to its earlier response to the 2008 Letter. Kroger sought confidential treatment for its response to the 2008 Letter, and received from the staff a closure letter dated January 8, 2009, for the 2008 Letter. Kroger received from the staff a closure letter dated August 4, 2010 for the 2010 Letter. Continued confidential treatment of these performance metrics and the manner in which a payout is calculated is warranted as they remain confidential commercial and financial information that, if disclosed, could be used by competitors in a manner that would cause substantial competitive harm to Kroger. As we have discussed in our CD&A, at page 26, achievement of the components of the plans becomes exceedingly more difficult each year due to the compounded nature of required improvement. For example, for its long-term performance based plan for which payout was earned for the period of 2010-2012, Kroger saw no improvement in its strategic plan, resulting in no payout for that metric, and Kroger saw 3 units of improvement in its associate engagement, resulting in a payout of 6% for that metric. We acknowledge that: · 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 filings; 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 have any questions or require any additional information regarding this matter, please contact me at 513-762-1482. Sincerely, /s/ Bruce M. Gack Bruce M. Gack cc: Scott Anderegg, Staff Attorney Catherine Brown, Staff Attorney D. Dillon D. Hackett P. Heldman R. McMullen M. Schlotman C. Wheatley