Following a four-week trial before the special administrative court of the US Federal Trade Commission (FTC), Latham antitrust litigators persuaded Administrative Law Judge D. Michael Chappell to rule in favor of Latham client GRAIL and its acquirer, Illumina – marking the first time the FTC’s administrative law judge has ever ruled against the FTC in a merger case. Based in California, GRAIL is a healthcare company focused on saving lives and improving health by pioneering new technologies for early cancer detection.
Importantly, the court’s decision not only cements precedent on the pro-competitive nature of vertical transactions such as Illumina/GRAIL, but also enables the merged companies to speed the market introduction of GRAIL’s life-saving innovation, Galleri, a non-invasive, multi-cancer diagnostic blood test that can detect cancer early for over 50 different cancer types and profoundly increase early detection of cancer when it is still treatable.
The transaction, valued at more than US$8 billion, was announced in September 2020. The FTC issued a Second Request in November 2020, and after filing and then withdrawing a formal challenge in US federal court, the FTC then decided to pursue its claim before its internal administrative court. Despite the FTC’s attempts to block the deal, and a similar challenge brought by the European Commission, the EU’s antitrust authority, the transaction closed in August 2021.
The Latham antitrust trial team that successfully defended GRAIL in the FTC administrative court included Washington, D.C. partners Michael Egge and Maggy Sullivan, and Bay Area partner Al Pfeiffer, Washington, D.C. counsel Anna Rathbun and Monica Groat, and Washington, D.C. associates David Johnson, Sean Mulloy, Zoë Hutchinson and San Diego associate Nathaniel Amann and Washington D.C. paralegals June Elliott and Stefanie Johnson. Representing GRAIL in the European Commission’s challenge are partners David Little in London/Brussels, Javier Ruiz Calzado in Brussels; Adrien Giraud in Paris; and José María Jiménez-Laiglesia in Madrid; with associates Anna Escrigas Cañameras, Daniel Muheme, Jérôme de Ponsay, and Simon Troch, all in Brussels.
A broader Latham team also represented GRAIL in the transaction with an M&A deal team led by Los Angeles partner Alex Voxman and Century City partner Andrew Clark, with assistance from Century City partner David Zaheer, Los Angeles partner Brian Duff, New York associate Eduard Grigoryan, Los Angeles associate Tim Day, and Bay Area associates Tess Bloom, and Natalie Robertson. Advice was also provided on capital markets matters by San Diego partner Cheston Larson and Bay Area partner Brian Cuneo; on tax matters by New York partners Lisa Watts and Eric Kamerman; on employee benefits and compensation matters by Los Angeles partner Larry Seymour and Century City/Bay Area partner Julie Crisp, with Los Angeles associate Jordan Barnes; on US merger clearance matters by Washington, D.C. counsel Patrick English; on intellectual property matters by Bay Area/San Diego partner Christopher Hazuka, with San Diego associate Robert Yeh; and on FDA regulatory matters by Washington, D.C. partner Elizabeth Richards.