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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`FEDERAL TRADE COMMISSION,
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`Plaintiff,
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`v.
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`ILLUMINA, INC. AND GRAIL, INC.,
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`Civil Action No. 1:21-cv-00873-RC
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`Defendants.
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`FILED UNDER SEAL
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`ANSWER OF DEFENDANTS ILLUMINA, INC. AND GRAIL, INC.
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`Defendants Illumina, Inc. (“Illumina”) and GRAIL, Inc. (“GRAIL”) (together,
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`“Defendants”) answer the Complaint for temporary restraining order and preliminary injunction
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`(Dkt. No. 14) (the “Complaint”) filed by the Federal Trade Commission (the “FTC”) in relation
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`to Illumina’s proposed acquisition of GRAIL (the “Transaction”) as follows:
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`PRELIMINARY STATEMENT
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`This case involves a transaction that, if consummated, will save tens of thousands
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`of lives. In the United States alone, cancer kills more than 500,000 people annually. The
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`Transaction will accelerate the development, approval and adoption of a revolutionary blood test
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`that can simultaneously detect more than 50 cancers, over 45 of which have no approved
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`screening test today. The test does so across all stages, including earlier stages when cancers are
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`more likely to be cured. The FTC’s challenge to the Transaction, which would deprive patients
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`of this acceleration, is speculative and baseless. The FTC and DOJ have not successfully
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`enjoined a vertical merger in over forty years. There is a reason for that track record.
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 2 of 40
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`Longstanding legal precedent, agency guidelines and economic literature recognize that vertical
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`mergers of this kind lead to efficiencies that promote consumer welfare and generally do not
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`raise competitive concerns. The FTC’s request for a preliminary injunction should be denied.
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`Illumina is a leading provider of sequencing products for genetic and genomic
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`analyses. Its mission is to improve human health by unlocking the power of the genome.
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`Illumina founded GRAIL five years ago with the goal of developing an early screening test for
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`multiple cancers. In 2017, GRAIL was spun out as a standalone company to invest in the
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`extensive, population-scale clinical trials needed to create an “atlas” of cancer signals in the
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`blood, and the attendant state-of-the art machine learning platform to interpret those signals,
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`enabling asymptomatic early cancer screening tests. Since the spinoff, GRAIL has developed an
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`early screening test, Galleri, that can simultaneously screen for more than 50 cancers in
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`asymptomatic patients who have no signs of cancer. GRAIL is also continuing to develop other
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`tests for different patient populations. GRAIL plans to launch its Galleri test as a laboratory
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`developed test in the United States in April 2021 but GRAIL is still many years from being able
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`to commercialize Galleri at a wide scale. In short, GRAIL is a discovery and development
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`company that has accomplished the very discovery and development goal contemplated by
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`Illumina when it created GRAIL. Illumina stands poised to help GRAIL bring those benefits to
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`the public as quickly and efficiently as possible.
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`Illumina maintains approximately a 14.5% equity stake in GRAIL and, under its
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`existing supply agreement with GRAIL, is entitled to a percentage of GRAIL’s net revenues,
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`once GRAIL has such revenues. The transaction seeks to fully reunite Illumina and GRAIL at a
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`critical juncture. While GRAIL has made significant progress in developing Galleri, it still faces
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`significant hurdles, including obtaining regulatory approval, payor reimbursement and
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`2
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 3 of 40
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`production and distribution of its test at scale. As the Complaint acknowledges, there are no
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`early cancer screening tests on the market today that simultaneously screen for more than one
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`cancer. No other company has publicly disclosed a test in development that can identify such a
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`broad range of cancers in asymptomatic patients. And Illumina is uniquely situated to use its
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`experience and resources to accelerate the widespread adoption of GRAIL’s early cancer
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`screening test, Galleri, and reach more patients faster. The combined company will launch a new
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`era of cancer screening, accelerating commercialization and adoption of GRAIL’s transformative
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`multi-cancer screening test. Galleri has the potential to reduce the cancer burden in the U.S. and
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`worldwide—this Transaction thus means saving thousands of lives by reducing that burden
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`sooner and at lower costs.
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`The FTC’s challenge to this purely vertical transaction is hopelessly speculative.
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`No NGS-based cancer screening tests have been launched on the market anywhere in the world.
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`There are no “rivals” to GRAIL. The FTC’s case is based entirely on speculation about what,
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`theoretically, Illumina might be able to do to a hypothetical rival to GRAIL in the future. Even if
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`such speculation were permitted, it would have no place here: before the FTC filed its
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`Complaint, Illumina offered binding, irrevocable contractual commitments to all of its U.S.
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`oncology customers, which address every one of the FTC’s stated concerns. Specifically, such
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`commitments include guarantees that:
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`Under a 12-year supply agreement, customers will have uninterrupted supply of
`the sequencing instruments and consumables that they use;
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`During that 12-year term, Illumina will not increase the price of any of the
`supplied sequencing instruments or consumables;
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`Far from increasing the price, by 2025, Illumina will decrease the cost of
`sequencing on Illumina’s highest throughput sequencing instrument, using the highest
`throughput consumable, by at least 43%, for all customers, regardless of application or use case;
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 4 of 40
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`All customers shall receive “universal pricing” for any new sequencing product,
`and customers shall receive access to the same sequencing products at the same pricing as
`GRAIL under a “most-favored nations” clause;
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`Illumina will not discontinue any sequencing product supplied for a 12-year term
`as long as the customer continues to purchase that product;
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`To the extent Illumina receives confidential information from any customer,
`Illumina will not share that information with GRAIL;
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`Illumina will provide any documentation or information reasonably required to
`seek FDA approval or FDA marketing authorization to sell a clinical test using the sequencing
`products supplied under the agreement;
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`Any customer who wants to develop an in vitro diagnostic (“IVD”) distributable
`kitted test using Illumina’s FDA-approved instruments may enter into a separate agreement with
`Illumina under the standard terms in Illumina’s commitments;
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`An annual audit will be conducted by an independent third-party auditor
`confirming compliance with the terms of the supply commitments; and
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`Disputes on supply terms will be adjudicated through baseball-style arbitration,
`and Illumina must continue to supply products to the customer during the pendency of any
`dispute.
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`These binding, irrevocable commitments are publicly available on Illumina’s website1 and open
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`for a period of six years. Some of Illumina’s largest oncology customers have signed agreements
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`on similar terms and stated that these binding commitments address any concerns they may have
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`had regarding the merger. The FTC received these contractual commitments prior to filing its
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`Complaint and does not address any of the specific terms in those agreements, despite the fact
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`that the most analogous legal authority (and the only decision involving a challenge to a vertical
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`merger in the last 40 years) relied on similar commitments in rejecting a vertical merger
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`challenge. United States v. AT&T Inc., 310 F. Supp. 3d 161, 241 n.51 (D.D.C. 2018) (finding
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`that arbitration commitment “will have real world-effects” and puts the merging parties’
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`1 https://www.illumina.com/areas-of-interest/cancer/test-terms.html?SCID=2021-
`270ECL5522.
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 5 of 40
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`“‘money where [their] mouth is’ in showing that the proposed merger, far from being aimed at
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`‘doing any of the things that the government alleges,’ is instead a ‘vision deal’ being pursued to
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`achieve ‘lower prices, improved quality, enhanced service, and new products’”).
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`The FTC bears the burden to show that issuing a preliminary injunction is in the
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`public interest based on an assessment of (1) the FTC’s likelihood of success on the merits, and
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`(2) the balance of the equities. That burden is substantial, especially in a case like this where the
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`FTC’s theory is speculative and the benefits of this transaction are concrete and profound:
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`accelerating access to this life-saving technology, and at lower prices. A preliminary injunction
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`will prevent the transaction from ever being consummated and, consequently, these benefits from
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`being realized. Thus, it is “an extraordinarily drastic remedy”. FTC v. RAG-Stiftung, 436 F.
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`Supp. 3d 278, 290 (D.D.C. 2020). A mere “showing of a fair or tenable chance of success on the
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`merits will not suffice for injunctive relief.” Id.
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`The FTC does not contest that the proposed merger is a purely vertical
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`transaction. Because it is purely vertical, the FTC “cannot use a short cut to establish a
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`presumption of anticompetitive effect”; it must make a “fact-specific” showing that the proposed
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`merger is anticompetitive. United States v. AT&T, Inc., 916 F.3d 1029, 1032 (D.C. Cir. 2019).
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`The FTC has not met its heavy burden here.
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`The FTC Improperly Defines the Relevant Product Markets. “Defining the
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`relevant market is a necessary predicate to finding a Clayton Act violation.” RAG-Stiftung, 436
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`F. Supp. 3d at 291. The FTC cannot meet this predicate.
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`First, as the Complaint acknowledges, the downstream market in which Galleri
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`will compete is non-existent and many years from reaching commercial scale. At this early stage
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`of its development, it is impossible to know what technologies will be deemed substitutes for
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`5
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 6 of 40
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`non-invasive early cancer screening. Today, some tests are based on polymerase chain reaction
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`(“PCR”) technology, which amplifies DNA to detect the presence of genomic mutations and
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`methylation changes. GRAIL’s Galleri test in development is based on next-generation
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`sequencing (“NGS”) technology, which uses sequencing to identify changes in methylation
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`profiles in cell-free DNA in the blood. A variety of different technologies are expected to be
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`used for cancer screening tests in the future, including proteomics, which identifies cancer
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`antigens or other pathologically significant proteins in blood samples, microarray, which
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`identifies genomic mutations and methylation changes using an orderly and specific arrangement
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`of probes attached to solid support, and PCR. The FTC offers no factual basis to exclude these
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`innovative technologies from the relevant market in which, years from now, multi-cancer
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`screening tests may compete. Only five years ago, GRAIL was a newly formed subsidiary of
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`Illumina with a moonshot goal of finding a way to detect multiple cancers early from a blood
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`draw. The FTC has no grounds to predict that, five-plus years from now, other technologies,
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`some already used today, others being developed, for cancer screening will not compete in the
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`relevant downstream market with NGS-based multi-cancer screening tests.
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`Second, the FTC fails to define a relevant upstream market. It is the FTC’s
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`burden to define a relevant upstream market, and it has not even alleged one. Indeed, other
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`clinical diagnostics platforms compete with Illumina’s NGS systems as a platform for cancer
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`screening tests, and, just as the downstream market is dynamic and evolving, so too is the
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`upstream market—as the FTC itself alleged over a year ago in its challenge to Illumina’s
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`proposed acquisition of Pacific Biosciences of California, Inc. The FTC improperly ignores this
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`intensifying competitive landscape.
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 7 of 40
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`No Vertical Foreclosure. The merger will not lead to any form of foreclosure or
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`higher prices of any potential rival to GRAIL who is, or may become, an Illumina customer. As
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`the FTC has recognized, the profitability of a foreclosure strategy depends on the “significance
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`of the merged firm’s potential gains in the relevant market and any potential losses from reduced
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`sales of the related product” resulting from the strategy.2 Here, a foreclosure strategy would
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`cause significant losses from reduced sales of Illumina’s upstream sequencing products, and
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`there is no basis to predict that those losses would be offset by diversion of sales of unknown
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`future rivals to Galleri. Thus, it is implausible that Illumina would attempt any such strategy,
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`even if it were not contractually prohibited from doing so (which it is).
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`Illumina’s long-standing and core strategy is to catalyze development
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`and expansion of sequencing into new applications, particularly in clinical markets. By
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`increasing demand for sequencing tests, Illumina grows its opportunity to sell more sequencing
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`products. Illumina’s reacquisition of GRAIL is transformational for both companies. However,
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`it does not change this strategic imperative to supply test developers with low-cost NGS products
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`that facilitate the expansion of sequencing into emerging clinical applications such as cancer
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`screening. Following the transaction, Illumina will continue to have powerful strategic and
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`economic incentives to reduce the cost of sequencing and provide innovative products to all
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`customers, regardless of whether they may compete with GRAIL in the future.
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`Illumina currently faces competition from rival platforms and will face increased
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`competition in the near future. Illumina recognizes that its customers have options, and that the
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`platform landscape is only growing more competitive. That is why Illumina has put its money
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`2 Fed. Trade Comm’n, Commentary on Vertical Merger Enforcement § 3(A)(ii) (2020),
`https://www.ftc.gov/system/files/documents/reports/federal-trade-commissionscommentary-
`vertical-merger-enforcement/p180101verticalmergercommentary_1.pdf.
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 8 of 40
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`where its mouth is by extending long-term contracts that prevent price increases and ensure
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`customers receive the benefits of Illumina’s upstream innovations—which Illumina would do in
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`all events given its strategic goal to accelerate adoption of NGS testing. The hypothetical future
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`conduct that the FTC alleges—which is impossible given those commitments—would also be
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`incredibly damaging to Illumina’s core strategy and financial incentives. Such tactics would
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`cause significant harm to Illumina’s reputation and discourage future development of tests on
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`Illumina’s platform. Further, because the cost of Illumina’s sequencing products are a small—
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`and shrinking—portion of the likely costs of future cancer screening tests, any attempt by
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`Illumina to divert sales to GRAIL by raising any future rivals’ costs would be ineffective, while
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`still inflicting substantial reputational and financial damage on Illumina’s core business.
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`Additionally, in evaluating vertical mergers, the FTC must show that “the merged
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`firm will benefit significantly from responsive changes in rivals’ behavior or from their lost
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`sales” as a result of a foreclosure strategy.3 The FTC cannot show that such “diversion” of sales
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`in the future market in which Galleri will compete is likely.
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` In reality, it is impossible to know what such
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`future tests might actually turn out to be, which cancers they might be able to screen, what
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`patient populations they might serve, or for what uses they might be approved. What is known
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`today is that Galleri is the only test that has demonstrated the ability to screen at least 50 cancers,
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`and also the only test to demonstrate the capability to detect the “cancer signal of origin” to help
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`identify the location of the cancer.
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`3 Fed. Trade Comm’n, Commentary on Vertical Merger Enforcement § 3(A)(ii) (2020),
`https://www.ftc.gov/system/files/documents/reports/federal-trade-commissionscommentary-
`vertical-merger-enforcement/p180101verticalmergercommentary_1.pdf.
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 9 of 40
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`The tests alleged in the FTC’s Complaint are in such early stages of development
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`that most have not even been publicly disclosed. For example, the FTC asserts, without any
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`supporting evidence, that
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` (Compl. ¶ 49.) Yet, there is no indication
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` that is remotely similar to Galleri, much less that
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`According to its public disclosures,
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` is nothing like a
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`generalized 50+ cancer test for population-scale screening of asymptomatic individuals who are
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`not known to have had cancer and certainly have never been treated for cancer. The Complaint
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`also asserts that
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` (Id. ¶ 48.)
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` In developing Galleri, GRAIL has conducted multiple multi-
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`year large-scale clinical studies, costing several hundred million dollars, and has initiated more,
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`aimed at demonstrating the clinical value and safety of a 50+ cancer screening test that has tissue
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`of origin capabilities; and GRAIL is still years from achieving scaled adoption. Given the low
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`prevalence of cancer in asymptomatic average-risk individuals, such multi-year studies are
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`essential to safely launch such a test. The FTC’s baseless speculation that the test developers
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`identified in the Complaint (or others) will develop close substitutes to Galleri—when none have
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`disclosed an intent to develop a test for nearly as many cancers as Galleri much less given any
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 10 of 40
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`public indication that they have started similar studies themselves—does not come close to
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`satisfying the FTC’s burden.
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`In fact, other tests, whenever they are developed, are likely to be differentiated
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`from Galleri in several ways, including the number and types of cancers detected, the level of
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`sensitivity and specificity for different cancers, the ability or inability to detect tissue of origin,
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`the indications approved by the FDA and the clinical uses for which Medicare and other
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`coverage is available. The FTC’s assertion that these tests, with very different characteristics
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`based on what is known today, will be close substitutes to Galleri in a future market that does not
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`yet exist is pure speculation. And, given the degree of differentiation among tests in
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`development, there is no basis to predict that Illumina would recoup the value of its lost sales of
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`sequencing products by selling more Galleri tests. It would make no economic sense for
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`Illumina to sacrifice profits upstream—and cause substantial and irreversible injury to its
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`reputation as a trusted supplier of NGS platforms—by pursuing a foreclosure strategy when it
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`could have no confidence that the strategy would create enough incremental profits from
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`diverted downstream sales to offset such damage to its core business. And, in any event,
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`Illumina has contractually disabled itself from pursuing such a strategy.
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`Illumina’s Long-Term Contracts. Illumina has addressed every one of the FTC’s
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`alleged harms by making binding contractual commitments to all of its U.S. oncology customers.
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`The Complaint alleges three ways in which Illumina purportedly could harm future downstream
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`rivals: raising their prices for NGS products, impeding their research and development efforts,
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`and refusing or delaying the execution of an IVD agreement. Compl. ¶ 11. Illumina’s long-term
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`commitments, summarized above, address all of these concerns. In the Complaint, the FTC
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`merely asserts that supply agreements “cannot account for each and every current and future”
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 11 of 40
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`foreclosure method (Complaint ¶ 70), ignoring that the commitments Illumina has made in fact
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`address each and every method alleged in the Complaint, and provide even more protections to
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`current or future oncology customers.
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`The Complaint also ignores that
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`credible;
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`The few customers that appear to have voiced objections to the transaction are not
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` Such
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`baseless objections offer no support to the FTC’s speculative claims and must be disregarded.
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`The Merger Will Produce Enormous Procompetitive Effects. While the FTC’s
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`allegations of harm are speculative and improbable, the procompetitive benefits arising from the
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`reunion of Illumina and GRAIL are certain to be realized and substantial. Most critically, the
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`transaction will enable GRAIL to get its life-saving test to more patients, in the U.S. and
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`globally, more quickly, and at lower prices than GRAIL could achieve absent the transaction.
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`The impact of such acceleration and price reductions cannot be overstated—tens of thousands of
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`additional lives will be saved, and there will be substantial cost savings for consumers and
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`healthcare systems, because of the merger. This acceleration will also pave the way for other test
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 12 of 40
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`developers to obtain regulatory approvals, reimbursement and adoption of NGS-based multi-
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`cancer screening tests. The merger will thus save lives and encourage innovation in cancer
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`screening.
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`including:
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`These important benefits arise from a number of merger-specific efficiencies,
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`•
`Accelerating FDA Approval and Medicare Reimbursement. Despite GRAIL’s
`progress in developing Galleri, it still faces the challenge of obtaining FDA approval. Indeed,
`FDA approval will be an enormous undertaking, and GRAIL on its own could readily hit
`speedbumps that result in delays of several months or even years. Illumina brings significant
`regulatory and quality resources with deep experience in obtaining FDA approval for clinical
`diagnostic products. Illumina will be able to leverage these resources to accelerate GRAIL’s
`submission activities, minimize the chance of error, and speed up FDA review time to result in
`earlier approval for Galleri. Moreover, because it is unlikely that Galleri will be able to obtain
`Medicare coverage without FDA approval, accelerating FDA approval will accelerate Medicare
`coverage, which is critical for Galleri to achieve widespread adoption in the U.S.
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`•
`Accelerating Private Insurance Reimbursement. Illumina has extensive
`experience obtaining reimbursement for NGS-based products, and has set the standard in value-
`based healthcare through partnerships with insurers for clinical tests. GRAIL has no such
`experience. Illumina will leverage its capabilities to accelerate obtaining reimbursement for
`GRAIL’s tests from private insurers.
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` This will vastly accelerate access to Galleri
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`for U.S. consumers.
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`•
`Speed to Scale. Illumina has the global operational infrastructure and experience
`operating regulated manufacturing and laboratory facilities to assist GRAIL in commercializing
`its tests at scale, in compliance with the quality and safety standards required by regulators.
`Illumina’s operational and commercial infrastructure will allow GRAIL to make its test more
`widely available at a faster rate and at lower costs.
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`•
`Elimination of Double Marginalization (“EDM”). Absent the transaction,
`Illumina and GRAIL would each separately charge a mark-up over their costs, resulting in two
`margins (Illumina’s on NGS products; GRAIL’s on its tests) reflected in the price for GRAIL’s
`tests. The merger will eliminate this double margin. Moreover, Illumina will have strong
`incentives to pass the resulting savings through to consumers in the form of lower prices for
`GRAIL’s tests, which will increase output and save lives. As the FTC itself acknowledged in its
`Vertical Merger Guidelines, “vertical mergers often benefit consumers through the elimination of
`double marginalization, which tends to lessen the risks of competitive harm.”4 In addition to
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`4 Federal Trade Commission Vertical Merger Guidelines, at 34 (June 30, 2020).
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`12
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 13 of 40
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`these standard EDM benefits, the merger will uniquely eliminate a significant royalty that
`GRAIL would otherwise owe Illumina on its future revenues. In combination with EDM, the
`savings from these efficiencies will be in excess of $2 billion over the next 10 years, which will
`be passed through to consumers. Thus, the merger will create an enormous opportunity to lower
`the price of Galleri far more than GRAIL would be able to absent the merger, and expand its
`reach to underserved communities.
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`•
`Accelerating International Expansion. GRAIL has virtually no international
`presence and no international expansion plans, while Illumina has boots on the ground across the
`globe, has platforms or tests registered in over 45 countries globally, and has substantial
`experience commercializing clinical tests internationally. Illumina’s global footprint will
`significantly accelerate the availability of GRAIL’s products outside the U.S. by years.
`Importantly, international acceleration will benefit not just the patients in those foreign
`jurisdictions, but also U.S. patients and the U.S. healthcare system. The diverse datasets
`generated from testing patients in different regions of the globe can be used as evidence of
`additional clinical validation as part of GRAIL’s FDA submission, and to demonstrate the
`economic benefits of Galleri to U.S. insurers, which cover patient populations with diverse
`ethnic backgrounds. Thus, international acceleration will further accelerate U.S. adoption of
`GRAIL’s tests.
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`•
`R&D Efficiencies. The combination of Illumina’s expertise in sequencing-based
`solutions and molecular biology with GRAIL’s machine learning capabilities and repository of
`clinical data will help accelerate new breakthroughs in oncology and other fields. These
`efficiencies are important and far from speculative, as history demonstrates. When Illumina
`acquired Verinata Health, Inc.—through which it vertically integrated into the downstream
`market for NIPT—over 100,000 expectant mothers had taken Verinata’s NIPT test. In a handful
`of cases, a signal was detected in the mother’s blood that was initially believed to be a false
`signal indicating a genetic abnormality in the fetus. After the acquisition, scientists at Illumina
`gained access to and analyzed that data, discovering that the NIPT test had detected circulating
`tumor DNA fragments present in the mother’s bloodstream. Verinata’s NIPT test had,
`incidentally, detected cancer in the blood, albeit at a late stage. From there, Illumina set out to
`achieve one of the most critical goals of cancer care—detecting cancer in the blood at its earliest
`stages. It is from that discovery, arising from R&D efficiencies created as a result of the vertical
`acquisition of Verinata, that Illumina formed GRAIL.
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`Importantly, these critical benefits are merger-specific. GRAIL does not have the
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`capabilities that Illumina can bring to bear to accelerate the scaled launch of GRAIL’s tests. The
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`institutional expertise, experiences and competencies that Illumina will use to aid GRAIL in its
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`regulatory and commercialization efforts will minimize the chances of delays, and maximize the
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`chances of accelerating wide-scale access to Galleri by U.S. consumers. Even if it were assumed
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`that, absent the merger, GRAIL eventually could build the competencies that Illumina has
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 14 of 40
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`developed from years of investment and experience, there is significant timing and execution
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`risk. Illumina has those competencies already and, with the merger, GRAIL will have access to
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`them swiftly, which will minimize the risks of missteps and delay—and here, delay will cost
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`lives.
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`Further, there is no possibility that the parties would achieve these benefits absent
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`the merger. Illumina does not provide such services to any third party, and has no history of
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`providing such extensive development and go-to-market services as a third-party consultant.
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`Illumina is not involved in the development or regulatory efforts of its clinical customers in any
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`material way. And Illumina’s clinical customers, including GRAIL, do not and would not share
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`proprietary data relating to the development or use of their tests with Illumina. Without access to
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`such data, Illumina cannot materially assist GRAIL in its regulatory, payor and
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`commercialization efforts. The merger is necessary to eliminate these barriers to collaboration
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`between Illumina and GRAIL in order to unlock the enormous, life-saving efficiencies that this
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`procompetitive reunion will create.
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`The Balance of Equities Favors the Transaction. If the Court issues a preliminary
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`injunction, the transaction will collapse. The Merger Agreement provides for termination rights
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`in the event that the transaction is not consummated on or before September 20, 2021, subject to
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`a three-month extension period, and both parties have stated that they will not go forward with
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`the transaction in the event that a preliminary injunction is issued. And with the collapse of the
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`transaction, an important opportunity to save tens of thousands of lives would be lost. The
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`equities plainly favor allowing this transaction to go forward.
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 15 of 40
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`RESPONSE TO THE SPECIFIC ALLEGATIONS OF THE COMPLAINT
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`Except to the extent specifically stated herein, Defendants deny each and every
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`allegation contained in the Complaint, including all allegations contained in headings or
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`otherwise not contained in one of the Complaint’s 90 numbered paragraphs.
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`The first paragraph of the preamble to the Complaint characterizes this action and
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`asserts legal conclusions to which no response is required; to the extent that a response is deemed
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`necessary, Defendants state that the FTC has petitioned this Court for a preliminary injunction
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`enjoining the Transaction and in all other respects denies the allegations in the first paragraph of
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`the preamble to the Complaint.
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`The second paragraph of the preamble to the Complaint characterizes this action
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`and asserts legal conclusions to which no response is required; to the extent that a response is
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`deemed necessary, Defendants state that the FTC has filed an administrative complaint before
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`the FTC and in all other respects denies the allegations in the second paragraph of the preamble
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`to the Complaint. Specifically, Defendants deny that competition will be harmed if the Court
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`denies the FTC’s request for a preliminary injunction enjoining the Transaction; and Defendants
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`deny that the FTC’s administrative hearing will determine the legality of the acquisition or will
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`provide all parties a full opportunity to conduct discovery and present testimony and other
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`evidence regarding the likely competitive effects of the acquisition.
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`To the contrary, Defendants aver that administrative proceedings before the
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`Commission frequently take years to complete and that the administrative proceeding against
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`Defendants would conclude long after the transaction’s deadline, given a weeks-long trial, post-
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`trial briefing, a months-long window for the Administrative Law Judge to issue an opinion, an
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`appeal to the Commissioners and an appeal to the United States Court of Appeals. Given the
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`15
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`Case 1:21-cv-00873-RC Document 49 Filed 04/06/21 Page 16 of 40
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`commercial realities surrounding the transaction, this Court’s determination with respect to this
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`preliminary injunction action will decide the fate of the transaction on the merits.
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`Defendants respond to the numbered paragraphs of the Complaint as follows:
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`NATURE OF THE CASE
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`1.
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`Defendants state that the allegations in paragraph 1 purport to describe