SEC – ‘UPLOAD’ from 5/18/22 re: Kroger Co. – ‘TEXT-EXTRACT’

On:  Wednesday, 5/18/22, at 10:30am ET   ·   Delayed-Release:  Filing ¶  –  Release Delayed   ·   Accession #:  0-22-5478

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Comment or Other Letter from the SEC   —   Delayed-Release

Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: LETTER      Comment or Other Letter from the SEC                 PDF     30K 
 2: TEXT-EXTRACT  Comment or Other Letter from the SEC - PDF's         3±    10K 
                Text                                                             

‘TEXT-EXTRACT’   —   Comment or Other Letter from the SEC – PDF’s Text

United States securities and exchange commission logo                           

May 18, 2022        

Jesse A. Lynn, Esq.                                               
Vice President                                                    
Barberry Corp.                                                    
c/o Icahn Enterprises L.P.                                        
16690 Collins Avenue, Suite PH-1                                  
Sunny Isles Beach, FL 33160                                       

                                                  Re: The Kroger Co.
                                                         Preliminary Proxy
Statement on Schedule 14A filed May 9, 2022                                     
                                                         Filed by Barberry
Corp., Carl C. Icahn, Alexis C. Fox and Margarita Pal  u-                       
                                                  Hern  ndez
                                                          File No. 001-00303

Dear Mr. Lynn:                                                    

                                                     We have reviewed your
filing and have the following comment.                                          

       Please respond to this comment by providing the requested
information or advise us as                                                     
soon as possible when you will respond. If you do not believe our 
comment applies to your facts                                                   
and circumstances, please tell us why in your response.           

                                                    After reviewing your
response to this comment, we may have additional comments.                      

Preliminary Proxy Statement on Schedule 14A filed May 9, 2022     

Reasons for Our Solicitation, page 5                              

 1.                                                   Please provide support
for the following statements or revise as appropriate to ensure that            
                                                  a reasonable basis
exists for such claims:                                                         

                                                            "we believe that
Kroger   s...Board...has not fulfilled its duty to shareholders to protect      
                                                       their interests
with respect to the Company   s mistreatment of its employees and its           
                                                         hollow commitment
to...ESG practices."                                                            
                                                             "Kroger   s Board
and management team should live up to this commitment by                        
                                                      addressing the
unacceptably low wages of the Company   s frontline workers..."                 
                                                         "While Kroger
profited from extremely high margins during the COVID-                          
                                                        19 pandemic, the
Company failed to fulfill its    Hero Bonus    promise made to its              
                                                  front-line
workers."                                                                       

                                                     In responding to this
comment, please note the disclosure on pages 6 and 53 of the                    
Jesse A. Lynn, Esq.                                                           
Barberry Corp.                                                                  
May 18, 2022                                                                    
Page 2                                                                          
      Company's definitive proxy statement filed on May 2, 2022 that "[i]n
2021, [Kroger]                                                                  
   invested more than ever before in our associates by continuing to
raise our average hourly                                                        
   wage to $17 and our average hourly rate to over $22, inclusive of
industry leading benefits                                                       
      such as continuing education and tuition reimbursement, training and
development, health                                                             
    and wellness." It is our understanding that Kroger has invested an
incremental $1.2                                                                
        billion in associate compensation and benefits since 2018 and invested
$140 million in                                                                 
associate training and development in 2021. It is also our    
understanding that (i) on March                                                 
  31, 2020, the Company announced that it would provide all hourly
frontline grocery,                                                              
       supply chain, manufacturing, pharmacy and call center associates with
a Hero Bonus - a                                                                
    $2 premium above their standard base rate of pay, applied to hours
worked March 29                                                                 
       through April 18, (ii) on April 16, 2020, the Company extended the $2
per hour premium                                                                
      for hourly frontline associates through May 2, 2020 and (iii) on May
15, 2020, the                                                                   
    Company announced that the Hero Bonuses were paid in April through
mid-May, with a                                                                 
 final payment to be made by May 23, 2020. Refer to Kroger press
releases found on its                                                           
  website dated March 31, April 16 and May 15, 2020. Finally, with
respect to the                                                                  
       reference to "extremely high margins" in the last bullet point above,
it is our                                                                       
   understanding that the Company's profit margins over the last two
years have been                                                                 
    consistent with pre-pandemic margins, with an overall gross profit
margin rate 0.06%                                                               
lower than in 2019.                                           

      We remind you that the filing persons are responsible for the accuracy
and adequacy of                                                                 
their disclosures, notwithstanding any review, comments, action or absence of   
action by the staff.                                                            

Please direct any questions to Perry Hindin at 202-551-3444.  

FirstName LastNameJesse A. Lynn, Esq.                         Sincerely,        
Comapany NameBarberry Corp.                                                     
                                                       Division of
Corporation Finance                                                             
May 18, 2022 Page 2                                           Office of Mergers 
& Acquisitions                                                                  
FirstName LastName                                                              

Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘UPLOAD’ Filing		Date		Other Filings
Filed on:		5/18/22		UPLOAD
		5/9/22		PREC14A,  UPLOAD
		5/2/22		DEFC14A,  UPLOAD
		5/23/20		10-Q
		5/15/20		UPLOAD
		5/2/20
		4/16/20		4,  UPLOAD
		3/31/20		4,  UPLOAD
				List all Filings