As Il­lu­mi­na con­tin­ues to fight for its $7.1 bil­lion Grail buy­out, the Amer­i­can An­titrust In­sti­tute and a for­mer an­titrust of­fi­cial want to get in­volved.

William Baer

The Wash­ing­ton DC-based ad­vo­ca­cy group and William Baer, for­mer di­rec­tor of the FTC’s Bu­reau of Com­pe­ti­tion and as­sis­tant at­tor­ney gen­er­al for DOJ’s an­titrust di­vi­sion, filed a re­quest on Mon­day to sub­mit an am­i­cus or “friend of the court” brief on a pro­posed fix that would have “im­por­tant im­pli­ca­tions for the fu­ture of merg­er law and sound an­titrust en­force­ment.”

It’s the lat­est move in a long-run­ning bat­tle against Il­lu­mi­na’s at­tempt to re-ac­quire its blood test­ing spin­out Grail, which was orig­i­nal­ly launched out of Il­lu­mi­na in 2016. The FTC filed a com­plaint about the merg­er last March, ar­gu­ing that it would sti­fle in­no­va­tion for liq­uid biop­sy can­cer screen­ing tests called mul­ti-can­cer ear­ly de­tec­tion or MCED tests, be­ing de­vel­oped by Grail and sev­er­al ri­vals.

While judge Michael Chap­pell dis­missed the com­plaint in ear­ly Sep­tem­ber, EU reg­u­la­tors blocked the ac­qui­si­tion just days lat­er. The bloc not­ed that ri­val com­pa­nies re­ly on Il­lu­mi­na’s se­quenc­ing tech­nol­o­gy for their own prod­ucts.

Mar­grethe Vestager

“With this trans­ac­tion, Il­lu­mi­na would have an in­cen­tive to cut off GRAIL’s ri­vals from ac­cess­ing its tech­nol­o­gy, or oth­er­wise dis­ad­van­tage them,” Eu­ro­pean Com­mis­sion EVP Mar­grethe Vestager said in a state­ment at the time. “It is vi­tal to pre­serve com­pe­ti­tion be­tween ear­ly can­cer de­tec­tion test de­vel­op­ers at this crit­i­cal stage of de­vel­op­ment.”

Il­lu­mi­na said it would ap­peal the de­ci­sion with gen­er­al coun­sel Charles Dadswell ar­gu­ing that the merg­er is “pro-com­pet­i­tive and will ac­cel­er­ate in­no­va­tion.”

“Il­lu­mi­na can make GRAIL’s life-sav­ing mul­ti-can­cer ear­ly de­tec­tion test more avail­able, more af­ford­able, and more ac­ces­si­ble – sav­ing lives and low­er­ing health­care costs,” Dadswell said in a news re­lease.

Charles Dadswell

In dis­miss­ing the case back in Sep­tem­ber, Chap­pell ac­knowl­edged that Il­lu­mi­na is the “on­ly vi­able sup­pli­er” of next-gen se­quenc­ing plat­forms need­ed by oth­er MCED test de­vel­op­ers. How­ev­er, he al­so added that a long-term sup­ply agree­ment by Il­lu­mi­na, or Open Of­fer, pre­vents it from harm­ing Grail’s ri­vals, call­ing the FTC’s ar­gu­ments oth­er­wise “un­con­vinc­ing.”

Baer and AAI said their brief would “ad­dress the role of the merg­ing par­ties’ Open Of­fer in the Ini­tial De­ci­sion and as­pects of Judge Chap­pell’s ap­proach to ‘lit­i­gat­ing the fix.’”

Nei­ther were im­me­di­ate­ly avail­able for com­ment on Thurs­day.

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