FTC Intervention in Illumina Grail Acquisition Unconstitutional, Say A Dozen States’ AGs

A dozen states have signed on to Illumina’s appeal of the Federal Trade Commission’s (FTC) order that the company divest itself of Grail — developer of the Galleri early cancer screening test — arguing that the commission’s process in the case was unconstitutional.

Illumina spun off Grail six years ago but then reacquired the company in August 2021 in an $8 billion deal. The merger prompted FTC concerns about the potential to stifle competition because Illumina is the leading supplier of the next-generation sequencing platforms needed for multicancer early detection tests.

The FTC had first taken the case to an administrative law judge in September 2022, where the commission’s complaint was dismissed.

“Congress has impermissibly delegated to FTC discretion to pick its forum,” according to the states’ June 12 friend-of-court filing to the U.S. Court of Appeals for the Fifth Circuit.

Submitted by Indiana Attorney General Theodore Rokita and Utah Attorney General Sean Reyes, the friend-of-court filing lists the AGs of Alaska, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Nebraska, South Carolina and Virginia as counsel.

The American Hospital Association (AHA) also filed a brief in support of Illumina, arguing that the FTC’s order is an example of “overreach” by the commission.

Read the states’ brief here.

Read the AHA’s brief here.

Related Topics