Amicus Brief - Illumina Inc. and Grail Inc. vs FTC
FOR IMMEDIATE RELEASE: August 2, 2023
CONTACT: Ashley Woolheater, woolheater@openmarketsinstitute.org
“By impeding the growth and success of rivals in the multi-cancer early detection (MCED) tests market in violation of antitrust law, Illumina may suppress beneficial innovation and rob patients of lifesaving improvements in cancer detection.”
WASHINGTON - The Open Markets Institute filed an amicus brief in the case of Illumina v. Federal Trade Commission (FTC), urging the Fifth Circuit to deny a petition for review in the case. The Open Markets brief lays out how the FTC correctly applied the Clayton Act as Congress intended and as Supreme Court precedent demands, to conclude Illumina’s acquisition of Grail – a vertical merger involving a monopolist – is illegal. The FTC ordered Illumina to divest Grail.
“The issue with Illumina, Inc.’s (Illumina) acquisition of Grail, Inc. (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,” the Open Markets brief reads. “Instead of Grail continuing to compete in the [multi-cancer early detection (MCED) tests] market through continued innovation, the combined Illumina-Grail can compete 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 may suppress beneficial innovation and rob patients of lifesaving improvements in cancer detection.”
The brief underscores the need for courts to follow the letter and purpose of the Clayton Act and binding Supreme Court precedent in deciding merger cases – and reject efficiency defenses for presumptively illegal mergers. It explains that “Congress enacted the Clayton Act to prohibit harmful mergers in their incipiency.” As the Supreme Court recognized, Congress enacted the Clayton Act to fix weaknesses in the Sherman Act and so prohibited mergers that pose a reasonable probability of harming rivals and consumers.
That is exactly the case with Illumina’s acquisition of Grail:
“Illumina is a monopolist in the market for next-generation sequencing—a critical input for makers of MCED tests. Following the acquisition of Grail in its entirety, Illumina obtained the ability and the incentive to raise prices of its essential next-generation sequencing platforms and consumables to current and would-be competitors of Grail or withhold them from these rivals entirely...Through this vertical merger, Illumina acquired a major competitive advantage in the market for MCED tests and possesses the power to foreclose and hamper competitors to Grail, to their detriment and ultimately to the detriment of patients.”
Read the full amicus brief below or download here.
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The Open Markets Institute is a team of journalists, researchers, lawyers, economists, and advocates working together to expose and reverse the stranglehold that corporate monopolies have on our country. Learn more at www.openmarketsinstitute.org.