WASHINGTON- The Open Markets Institute welcomed the announcement that gene sequencing company Illumina will sell cancer test developer Grail. This news comes after the Fifth Circuit, in a unanimous opinion on Friday, broadly agreed with the Federal Trade Commission’s decision that the acquisition violated the Clayton Act.  

Although the court vacated the FTC’s ruling and remanded the case for further proceedings at the Commission, the Fifth Circuit, in line with Open Markets’ amicus brief in support of the FTC, recognized that mergers that create a reasonable probability of harm are illegal and that vertical mergers, which involve firms in a buyer-seller relationship, can violate the law.  

Sandeep Vaheesan, Open Markets’ Legal Director, issued the following statement: 

“The issue with Illumina’s acquisition of Grail is simple. A dominant firm should not be permitted to acquire another company when it controls a critical input on which the target company and its rivals depend. Instead of Grail competing in the multi-cancer early detection (MCED) test market through continued innovation, the combined Illumina-Grail could have competed by withholding critical inputs from rivals or supplying them on unfair terms. By impeding the growth and success of rivals in the MCED market in violation of antitrust law, Illumina could have suppressed beneficial innovation and robbed patients of lifesaving improvements in cancer detection. The FTC correctly challenged the acquisition and deserves credit for pressuring Illumina to sell off Grail.” 

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