Case 1:21-cv-00873-RC Document 58 Filed 04/20/21 Page 1 of 18
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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., et al.,
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`Defendants.
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`Civil Action No.:
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`21-873 (RC)
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`Re Document No.:
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`41
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`MEMORANDUM OPINION
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`GRANTING DEFENDANT’S MOTION TO TRANSFER VENUE
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`I. INTRODUCTION
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`Two biotechnology firms agreed that one would acquire the other. The federal
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`government then filed suit to stop the merger, arguing that the deal would stifle innovation and
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`harm consumers. But before any court can decide whether the merger can go forward, this Court
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`must determine where the litigation should take place. Between this district and a district that
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`would be easier for the most witnesses to get to, the latter is more appropriate.
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`II. BACKGROUND
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`Illumina, Inc. is a market leader in genetic sequencing products. Redacted Compl. ¶¶ 5–
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`6, ECF No. 14. Its sequencing platforms are a key component in multi-cancer early detection
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`tests, which promise to revolutionize cancer treatment. Id. ¶¶ 2, 6. These tests will allow
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`healthcare providers to screen for a wide variety of cancers and detect cancer early on in a
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`tumor’s development. Id. ¶¶ 2–3. Several biotechnology firms are racing to develop the
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`technology and bring it to market. Id. ¶ 4.
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`In 2015, Illumina formed GRAIL, Inc. to compete in that race. Id. ¶ 7. Two years later,
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`however, Illumina reduced its share in GRAIL to below 20%. Id. ¶ 8. It currently owns just
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`14.5% of GRAIL’s voting shares, with well-known investors like Jeff Bezos, Bill Gates, and
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`Johnson & Johnson owning the rest. Id. GRAIL has now developed a multi-cancer early
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`detection test called “Galleri.” Id. ¶¶ 4, 9. It plans to seek approval to commercialize Galleri
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`from the U.S. Food and Drug Administration (“FDA”). Id. ¶ 9. Last year, Illumina and GRAIL
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`(collectively, “Defendants”) entered into a merger agreement whereby Illumina would acquire
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`the remaining 85.5% of GRAIL’s shares it does not already own. Id. ¶ 26.
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`Concerned that the merger would have serious anticompetitive effects on the U.S. multi-
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`cancer early detection test market, see id. ¶¶ 1, 11–14, the Federal Trade Commission decided to
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`conduct an administrative adjudication to determine if the deal would violate federal antitrust
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`laws, id. ¶ 27. That adjudication is scheduled to begin in the District of Columbia on August 24,
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`2021. See id.; Pl.’s Mem. Opp’n Defs.’ Mot. Transfer Venue (“Pl.’s Opp’n”) at 11, ECF No. 55.
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`To prevent Defendants from executing the merger while the adjudication is pending, the
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`Commission filed this action. See Pl.’s Mot. TRO, ECF No. 4. The parties have stipulated to a
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`temporary restraining order that prevents the merger until the earliest of (1) September 20, 2021;
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`(2) the end of the second business day after a court rules on the Commission’s motion for a
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`preliminary injunction; or (3) the Commission’s dismissal of the action. TRO at 2, ECF No. 8.
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`The dispute at issue now is which court should decide the Commission’s preliminary
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`injunction motion. Defendants ask that the case be transferred to the Southern District of
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`California. See Mem. P & A Supp. Defs.’ Mot. Transfer Venue (“Defs.’ Mot.”), ECF No. 41-1.
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`Both companies are headquartered in California—Illumina in the Southern District, Schwillinksi
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`Decl. ¶ 4, ECF No. 41-3, and GRAIL in the Northern District, Song Decl. ¶ 3, ECF No. 41-2.
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`California was also the site of the merger negotiations. Schwillinksi Decl. ¶ 5; Song Decl. ¶ 6.
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`And Defendants say that, if an in-person hearing on the motion is possible, more witnesses
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`would have an easier time getting to the Southern District than this one. Defs.’ Mot. at 1–2. The
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`Commission opposes transfer. See Pl.’s Opp’n. It stresses that its choice of forum deserves
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`considerable deference. Id. at 1. And it disputes Defendants’ claim that the Southern District
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`would be more convenient. Id. at 2. Ultimately, Defendants have the better argument.
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`III. LEGAL STANDARD
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`Even when venue is already proper, “[f]or the convenience of parties and witnesses, in
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`the interest of justice, a district court may transfer any civil action to any other district or division
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`where it might have been brought.” 28 U.S.C. § 1404(a). Assessing a transfer request requires
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`an “individualized, case-by-case consideration of convenience and fairness.” Van Dusen v.
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`Barrack, 376 U.S. 612, 622 (1964). The party who asks for a transfer bears the burden of
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`showing it is warranted. Chauhan v. Napolitano, 746 F. Supp. 2d 99, 102 (D.D.C. 2010). First,
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`the movant must demonstrate that venue would be proper in the proposed transferee district.
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`Wolfram Alpha LLC v. Cuccinelli, 490 F. Supp. 3d 324, 330 (D.D.C. 2020). Second, the movant
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`must show that the balance of private and public interests weighs in favor of transfer. Id.
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`IV. ANALYSIS
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`The Commission does not disagree that venue would be proper in the Southern District of
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`California. Nor could it, seeing as Illumina is headquartered there and GRAIL is headquartered
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`elsewhere in California. See 28 U.S.C. § 1391(b)(1) (stating that venue is proper in “a judicial
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`district in which any defendant resides, if all defendants are residents of the State in which the
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`district is located”); see also 15 U.S.C. § 53(b) (permitting the Commission to bring suit, inter
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`alia, wherever venue is proper under section 1391). As a result, this dispute centers on whether
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`private and public interests warrant transfer.
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`Almost all those factors are neutral or favor transfer. But the one factor weighing in
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`favor of keeping the case is ordinarily entitled to a great deal of deference. Although the
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`question is a close call, the Court agrees with Defendants that transfer is appropriate.
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`A. The Effect of the COVID-19 Pandemic
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`Before delving into an assessment of the private and public interest factors, the Court
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`addresses how the ongoing COVID-19 pandemic affects its analysis. For over a year, courts
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`across the country—including this one and the District Court for the Southern District of
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`California—have held limited in-person hearings to slow the spread of the COVID-19 virus.
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`See, e.g., Standing Order 20-9 (D.D.C. Mar. 16, 2020); Standing Order 18-A (S.D. Cal. Mar. 23,
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`2020). In the meantime, courts have mostly resorted to holding hearings over the telephone and
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`videoconferencing software. But the proliferation of vaccines raises the possibility of returning
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`to regular in-person proceedings soon. See COVID-19 Vaccinations in the United States, Ctr. for
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`Disease Control & Prevention, https://covid.cdc.gov/covid-data-tracker/#vaccinations (showing
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`that, as of April 18, 2021, 25.4% of the U.S. population was fully vaccinated).
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`The parties spar over how the possibility of an in-person preliminary injunction hearing
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`impacts the appropriateness of transfer. Defendants want the hearing—which they say “will
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`function as a trial on the merits”—to be in person. Defs.’ Mot. at 1. And if the hearing is in
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`person, they say, then it would be much easier for witnesses and parties who largely reside in
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`California and the Western United States to travel to the Southern District than it would be for
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`them to travel to the District of Columbia. Id. at 1, 7. Defendants assert that the risk of
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`contracting COVID-19 may dissuade West Coast witnesses’ attendance at a hearing on the other
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`side of the country, and they point out that local D.C. travel restrictions (such as testing and
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`isolation requirements) would raise logistical hurdles. See id. at 7–8; see also, e.g., D.C. Health,
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`Coronavirus 2019 (COVID-19): Guidance for Travel (Mar. 3, 2021), https://coronavirus.dc.gov/
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`sites/default/files/dc/sites/coronavirus/page_content/attachments/Travel_Guidance_DCHealth_C
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`OVID-19_Updated%203.3.21.pdf. According to Defendants, relocating the case to the Southern
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`District would minimize these burdens.
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`The Commission responds that an in-person proceeding is unnecessary, so none of
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`Defendants’ claimed burdens should hold weight. See Pl.’s Opp’n at 6–8. It points to cases
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`where other district courts found that videoconference platforms permitted adequate assessment
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`of remote witnesses’ credibility. Id. at 6 (citing Flores v. Town of Islip, No. 18-cv-3549, 2020
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`WL 5211052, at *2 (E.D.N.Y. Sept. 1, 2020); Raffel Sys., LLC v. Man Wah Holdings Ltd., Inc.,
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`No. 18-cv-1765, 2020 WL 8771481, at *3 (E.D. Wis. Nov. 13, 2020)). Given the effectiveness
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`of remote proceedings, the Commission argues, there is no point in risking participants’ health
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`with an in-person hearing—especially in light of concerns that a fourth surge in COVID-19 cases
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`may be coming or that variants of the virus may stall recent progress. See Pl.’s Opp’n at 7–8.1 If
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`the hearing will be remote anyway, the Commission concludes, then transferring the case would
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`do little for the convenience of the parties or witnesses. See id. at 7.
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`Yet significantly, “[l]ive testimony is . . . markedly preferable” to remote testimony.
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`Beall v. Edwards Lifesciences LLC, 310 F. Supp. 3d 97, 106 (D.D.C. 2018) (quoting Pyrocap
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`Int’l Corp. v. Ford Motor Co., 259 F. Supp. 2d 92, 98 (D.D.C. 2003)); see also United States v.
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`1 See also Reis Thebault, Are We Entering a ‘Fourth Wave’ of the Pandemic? Experts
`Disagree., Wash. Post (Apr. 4, 2021), https://www.washingtonpost.com/health/2021/04/04/
`covid-fourth-wave/; Apoorva Mandavilli & Benjamin Mueller, Virus Variants Threaten to Draw
`Out the Pandemic, Scientists Say, N.Y. Times (Apr. 5, 2021), https://www.nytimes.com/2021/
`04/03/health/coronavirus-variants-vaccines.html.
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`Lattimore, No. 20-cv-123, 2021 WL 860234, at *7 (D.D.C. Mar. 8, 2021) (“The Court would
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`greatly prefer to hold all pre-trial hearings in person. . . . Unfortunately, the COVID-19 pandemic
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`simply prevents the Court from holding in-person hearings safely at this time.”). The utility of
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`live proceedings is not limited to aiding in the evaluation of witness credibility—though that is
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`one important benefit, see Beall, 310 F. Supp. 3d at 106; Pyrocap, 259 F. Supp. 2d at 98.
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`Among other advantages, live proceedings permit more natural dialogue among hearing
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`participants, allow participants to handle any physical evidence, and avoid the technical
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`difficulties that can sometimes trip up virtual proceedings. The Court will therefore seek to
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`maximize the chances that the preliminary injunction hearing can occur in person or, in the event
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`of a hybrid proceeding, that as many people as possible can safely provide live testimony.
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`Due to the continued rollout of vaccines, an in-person or hybrid proceeding may be
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`possible by July or August, which is when the parties anticipate the hearing taking place. See
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`Sheryl Gay Stolberg, Biden Moves Up Vaccine Eligibility Deadline for All Adults to April 19,
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`N.Y. Times (Apr. 6, 2021), https://www.nytimes.com/2021/04/06/us/politics/biden-vaccine-all-
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`adults-eligible.html. But between the spread of virus variants, the possibility of another surge,
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`and regional differences in vaccination rates, there is no way to predict whether a live hearing is
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`more likely in one district versus the other. As a result, the relative likelihood of an in-person
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`hearing between the two districts will not factor into the Court’s analysis.
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`Nevertheless, the Court will assume in its assessment that the hearing will occur, at least
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`in part, in person. Cf. Montgomery v. Barr, No. 20-cv-03214, 2020 WL 6939808, at *9 (D.D.C.
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`Nov. 25, 2020) (“[T]his factor, as well as some others geared towards convenience, seems less
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`relevant today because of the frequency of telephone and video conferences due to the COVID-
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`19 pandemic. Even so, the Court must apply the legal framework, which envisions in-person
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`hearings and trials, as it exists. To do otherwise would eviscerate the idea that local courts
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`should hear local matters.” (citation omitted)). If that assumption turns out to be wrong, then—
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`as the Commission points out—it matters little for convenience’s sake which court hears the
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`case. Either way, witnesses, lawyers, and the parties will be able to join the videoconference
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`proceedings from the safety of their homes and offices. But if the hearing will be in person, then
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`pandemic-related risks and restrictions could significantly impact participants’ ability and
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`willingness to attend. It is safer to plan for an in-person hearing so that, in case one does occur,
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`as many participants as possible can safely appear.
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`B. The Private Interest Factors Support Transfer
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`When weighing a motion to transfer, a court takes into account the following private
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`interest considerations: (1) the plaintiff’s choice of forum; (2) the defendant’s preferred forum;
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`(3) the location where the claim arose; (4) the convenience of the parties; (5) the convenience of
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`the witnesses; and (6) ease of access to sources of proof. Vasser v. McDonald, 72 F. Supp. 3d
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`269, 282 (D.D.C. 2014). Only one private interest factor—the plaintiff’s choice of forum—
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`favors this Court retaining the case. The remaining factors range from having a neutral effect on
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`the venue analysis to strongly favoring transfer. Those factors win out.
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`Because the last four factors help assess the weight the first two are entitled to, the Court
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`begins with them. For starters, the location where the claim arose benefits Defendants. A claim
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`originates “in the location where the corporate decisions underlying those claims were made or
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`where most of the significant events giving rise to the claims occurred.” Beall, 310 F. Supp. 3d
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`at 104 (citation omitted). Defendants emphasize that their officers negotiated the acquisition
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`agreement in California. Song Decl. ¶ 6; Schwillinski Decl. ¶ 5. Although they do not specify
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`that the negotiations took place in the Southern District, they are adamant that the negotiations
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`did not touch the District of Columbia at all. Song Decl. ¶ 6; Schwillinksi Decl. ¶ 5. At a
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`minimum, then, the location where the claim arose is a neutral factor. Cf. United States v.
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`Energy Sols., Inc., No. 16-cv-1056, 2016 WL 7387069, at *4 (D. Del. Dec. 21, 2016) (explaining
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`that the factor was “largely neutral” when the record was unclear and did not “definitively
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`indicate” that merger negotiations took place in the proposed transferee district). But even if the
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`negotiations occurred, say, in the Northern District of California, that district is much closer to
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`the Southern District than this one. So to the extent that the factor is “a proxy for where the
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`witnesses, parties, and evidence are likely to be located,” United States v. H & R Block, Inc., 789
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`F. Supp. 2d 74, 80 (D.D.C. 2011), the Southern District would likely provide a more convenient
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`forum for this dispute than one across the country. Cf. FTC v. Graco Inc., No. 11-cv-2239, 2012
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`WL 3584683, at *5 (D.D.C. Jan. 26, 2012) (determining that the factor favored transfer when the
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`merger agreement “was negotiated, drafted, and executed” in the proposed transferee district).
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`Indeed, the Court’s analysis of the other factors bears that hypothesis out.
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`The convenience-of-the-parties factor is neutral. For a “burden suffered by a party from
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`litigating in a particular forum to weigh in favor of transfer, litigating in the transferee district
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`must not merely shift inconvenience to the non-moving party; instead, it should lead to increased
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`convenience overall.” Mazzarino v. Prudential Ins. Co. of Am., 955 F. Supp. 2d 24, 31 (D.D.C.
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`2013). Defendants’ potential benefit from transfer is obvious. Illumina is headquartered in the
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`Southern District. See Schwillinski Decl. ¶ 4; see also Virts v. Prudential Life Ins. Co. of Am.,
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`950 F. Supp. 2d 101, 107 (D.D.C. 2013) (explaining that a company’s headquarters in a district
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`made that forum a more convenient one). And GRAIL is headquartered in the Northern District
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`of California, which is much closer to the Southern District than the District of Columbia. See
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`Song Decl. ¶ 3. But because transfer would take the case away from where the Commission is
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`headquartered, it would merely shift inconvenience to the Commission. As a result, the factor
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`favors neither party. See Graco, 2012 WL 3584683, at *6 (finding that convenience of the
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`parties did “not weigh in favor of either party” because “Minnesota is more convenient for the
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`defendants and the District of Columbia is more convenient for the FTC”).2
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`Weighing heavily toward transfer is the convenience of witnesses. This factor is the most
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`important one. Beall, 310 F. Supp. 3d at 105 (“The most critical factor to examine under 28
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`U.S.C. § 1404(a) is the convenience of the witnesses.” (citation omitted)). Significantly, the
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`inquiry is “not whether certain witnesses may be located outside the chosen forum, but instead
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`whether those witnesses would be unwilling to testify in the District of Columbia.” FTC v.
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`Cephalon, Inc., 551 F. Supp. 2d 21, 28 (D.D.C. 2008) (internal quotation marks and citation
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`omitted). And because parties can typically compel their employees to appear regardless of the
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`forum, the convenience of nonparty witnesses matters more than the convenience of party
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`witnesses. See H & R Block, 789 F. Supp. 2d at 82; see also Cephalon, 551 F. Supp. 2d at 28
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`(“The employee witnesses located at Cephalon’s headquarters are under the control of Cephalon
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`and could most likely be compelled to testify here.”).
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`Defendants’ argument on this factor is strong. By their count, eleven of the nineteen
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`third-party witnesses that the Commission has deposed or examined via investigational hearings
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`“appear to be based in California.” Mot. Hr’g Tr. at 13:14–15. And of the fourteen Illumina and
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`GRAIL employees the Commission examined, thirteen live in California. Id. at 13:11–12. In
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`addition, Defendants’ competitors—which, both parties agree, will supply some witnesses—are
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`2 The Commission mentions that the Southern District would require more lawyers to
`travel. See, e.g., Pl.’s Opp’n at 7–8. But “[t]he location of counsel ‘carries little, if any, weight
`in an analysis under § 1404(a).’” Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 52 n.7 (D.D.C.
`2000) (citation omitted).
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`largely based in California and the Western United States. Of the competitors the Commission
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`lists in its sealed complaint, more are headquartered in California than any other state or the East
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`Coast as a whole, others have offices in California, and another has offices in nearby Arizona.
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`See Sealed Compl. ¶ 46, ECF No. 3; see also Pl’s. Opp’n at 18; Mot. Hr’g Tr. at 26:4–6
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`(Commission attorney stating that “potential witnesses” live in California, Arizona, Maryland,
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`Massachusetts, and the District of Columbia). The Commission points out that the third-party
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`witnesses’ geographic distribution remains to be seen because the parties have not yet identified
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`them for the hearing. Pl.’s Opp’n at 18. It also suggests that, while some potential witnesses’
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`employers are in California, the witnesses live elsewhere. Mot. Hr’g Tr. at 25:23–25.
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`Ultimately, however, the Commission does not offer any hard figures to dispute the general point
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`that likely witnesses would have an easier time getting to the Southern District than this district.
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`Travel that would ordinarily pose a mere inconvenience may well, under the current
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`circumstances, deter witnesses from attending proceedings in the case. “[T]he pandemic has
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`highlighted that there can be risks associated with travel,” so “[s]ome people who would not
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`have been worried about travel before the pandemic are now reluctant to travel.” Express
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`Mobile, Inc. v. Web.com Grp., Inc., No. 19-cv-1936, 2020 WL 3971776, at *4 (D. Del. July 14,
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`2020). Furthermore, witnesses may be less willing to attend proceedings if it means elongating
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`their stay to account for local COVID-19 travel protocols such as testing and quarantining.
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`Given that more potential witnesses appear to be located in or near California than
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`anywhere else, transferring proceedings in the Southern District would minimize the burdens and
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`risks of travel for the greatest number of witnesses. Cf. id. at *3 (finding that the convenience of
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`the witnesses “favor[ed] transfer” in part because “the bulk of non-expert witnesses are more
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`likely to reside in the Middle District of Florida than anywhere else”). Even if many of the
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`witnesses live in other districts in the Western United States, holding proceedings in the
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`Southern District would still reduce the need for potentially hazardous long-haul airplane trips.
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`See Safer Travel Ideas, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/
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`coronavirus/2019-ncov/travelers/travel-risk.html (warning travelers to avoid long flights with
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`layovers). Indeed, “[c]ourts have consistently transferred actions when the majority of witnesses
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`live near the transferee forum.” Beall, 310 F. Supp. 3d at 105 (alteration in original) (emphasis
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`added) (quoting Mathis v. Geo Grp., Inc., 535 F. Supp. 2d 83, 87 (D.D.C. 2008)). In sum, the
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`critical convenience-of-the-witnesses factor strongly favors transfer.
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`The Southern District also provides easier access to some sources of proof, though the
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`factor carries limited weight. Between housing Illumina’s headquarters and its relatively close
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`proximity to GRAIL’s headquarters in the Bay Area, the Southern District has a geographic
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`advantage over this district when it comes to obtaining corporate records about the merger. That
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`said, modern technology permitting the instantaneous transfer of those kinds of records nearly
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`eliminates that advantage. See H & R Block, 789 F. Supp. 2d at 83. But see Beall, 310 F. Supp.
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`3d at 106 (“While the records may be in electronic form, this factor weighs nonetheless in favor
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`of transfer because ‘all of the . . . documents’ are located in the transferee forum.” (citation
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`omitted)). More important is the Southern District’s proximity to physical exhibits such as
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`company equipment and products, which Defendants remarked in oral argument would help a
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`court decide the case. See Mot. Hr’g Tr. at 20:3–9. Because Defendants failed to raise that
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`argument in their brief, see Defs.’ Mot. at 11, the Court is hesitant to put too much stock in it, see
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`Walker v. Pharm. Rsch. & Mfrs. of Am., 461 F. Supp. 2d 52, 58 n.9 (D.D.C. 2006) (explaining
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`that a party forfeits an argument not raised in its opening brief). Nevertheless, the Southern
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`District appears marginally better poised to access relevant evidence than this Court.
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`What remains to be considered are the parties’ preferences. Usually, a plaintiff’s choice
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`of forum is “a ‘paramount consideration’ that is entitled to ‘great deference’ in the transfer
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`inquiry.” Cephalon, 551 F. Supp. 2d at 26 (quoting Thayer/Patricof Educ. Funding, L.L.C. v.
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`Pryor Res., Inc., 196 F. Supp. 2d 21, 31 (D.D.C. 2002)). Indeed, “some courts have found that
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`the government’s choice of venue in an antitrust case is ‘entitled to heightened respect.’” Id.
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`(quoting United States v. Brown Univ., 772 F. Supp. 241, 242 (E.D. Pa. 1991)); see also United
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`States v. Microsemi Corp., No. 08-cv-1311, 2009 WL 577491, at *7 (E.D. Va. Mar. 4, 2009)
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`(“Where venue is proper, a plaintiffs [sic] choice of forum is entitled to substantial weight,
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`particularly where the plaintiff’s choice of forum is authorized by the more liberal antitrust venue
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`provision.”). But the deference owed to a plaintiff diminishes if “there is an insubstantial factual
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`nexus between the case and the plaintiff’s chosen forum.” Fed. Hous. Fin. Agency v. First Tenn.
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`Bank Nat. Ass’n, 856 F. Supp. 2d 186, 192 (D.D.C. 2012) (quoting New Hope Power Co. v. U.S.
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`Army Corps of Eng’rs, 724 F. Supp. 2d 90, 95 (D.D.C. 2010)). And “when the weight of the
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`plaintiff’s choice is comparatively weak,” the defendant’s choice deserves greater consideration.
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`Mazzarino, 955 F. Supp. 2d at 31 (quoting Virts, 950 F. Supp. 2d at 106).
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`This case has little connection to the District of Columbia. After all, it originated out of a
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`merger that two California-based companies negotiated in California. Cf. Cephalon, Inc., 551 F.
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`Supp. 2d at 26 (“None of the negotiations that led to the settlement agreements at the heart of
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`this controversy took place in, or were in any other way related to, the District.”); cf. also
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`Bergmann v. U.S. Dep’t of Transp., 710 F. Supp. 2d 65, 72 (D.D.C. 2010) (“Plaintiff’s choice of
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`forum is also entitled to less deference where, as here, the majority of operative facts took place
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`outside the District of Columbia.”). The Commission nevertheless insists that this case is tied to
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`the District in several ways. It first asserts that the merger will cause nationwide harm that will
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`affect consumers in the District of Columbia. Pl.’s Opp’n at 10. It then infers that, because
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`Defendants claim in their answer that the merger will help GRAIL obtain FDA approval for
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`Galleri, that GRAIL’s small, D.C.-based government-relations office will play a “notably
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`outsized role . . . in a review of this merger.” Id. at 10–11; see also, e.g., Redacted Answer at 12,
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`ECF No. 49. And finally, it says that the parallel administrative adjudication pending in the
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`District of Columbia warrants keeping the cases in the same locale. Pl.’s Opp’n at 11.
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`Each of those attempts to demonstrate a meaningful connection to this forum falls flat.
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`While D.C. residents may feel the anticompetitive effects of the merger, the nationwide impact
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`makes this forum no different than any other. Cf. FTC v. Acquinity Interactive, LLC, No. 13-cv-
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`5380, 2014 WL 37808, at *2 (N.D. Ill. Jan. 6, 2014) (concluding that the Commission’s choice
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`of forum was entitled to “less weight” than usual because “the only real connection between the
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`lawsuit and this district is that some of the alleged consumer injury occurred here,” but that
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`“d[id] not differentiate this district from any other district in the country”); cf. also Graco, 2012
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`WL 3584683, at *5 (similar); Cephalon, 551 F. Supp. 2d at 27–28 (similar). Likewise, GRAIL’s
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`D.C. office is not as relevant as the Commission claims it is. The office has fewer than ten
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`employees, Song Decl. ¶ 5, and it is focused on lobbying rather than securing regulatory
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`approvals (which is handled out of the company’s California headquarters), Mot. Hr’g Tr. at
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`7:14–22. Cf. Cephalon, 551 F. Supp. 2d at 26 (finding that a corporation’s “very small public
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`affairs office in the District of Columbia” did not create a meaningful connection to the District).
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`The yet-to-begin administrative adjudication does not help the Commission either. Its claim that
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`the proceeding connects this case to the District was unsupported by any legal authority. See
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`Pl.’s Opp’n at 11; cf. Graco, 2012 WL 3584683, at *5 (“The FTC argues that because this case is
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`[a] preliminary injunction proceeding in aid of an administrative proceeding currently pending in
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`Case 1:21-cv-00873-RC Document 58 Filed 04/20/21 Page 14 of 18
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`the District of Columbia, this case, in a procedural sense, arises out of that administrative action.
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`There is, however, no legal support provided for the plaintiff’s proposition.”). And “this Court
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`has long recognized that mere involvement on the part of federal agencies, or some federal
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`officials who are located in Washington, D.C. is not determinative of whether the plaintiffs’
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`choice of forum in the District of Columbia receives deference.” First Tenn. Bank, 856 F. Supp.
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`2d at 192 (cleaned up) (quoting New Hope Power, 724 F. Supp. 2d at 95–96).
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`To the extent the Commission suggests that the FDA approval process ties this case to
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`this district because the agency is headquartered nearby in Maryland, it is wrong. See Mot. Hr’g
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`Tr. at 27:18 to 28:1. Of course, one of the many reasons Defendants agreed to the merger is that
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`they believe it will allow Illumina to help secure FDA approval for GRAIL’s Galleri product.
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`See Redacted Answer at 12. But a federal agency’s general oversight of an industry does not
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`link its home forum to every controversy that somehow relates to its regulatory processes. See
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`Bergmann, 710 F. Supp. 2d at 73 (“While plaintiff argues that his claims ‘arose principally at the
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`headquarters offices of the Defendants in Washington, D.C.,’ defendants persuasively counter
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`that ‘the only real connection [the] lawsuit has to the District of Columbia is that a federal
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`agency headquartered here . . . is charged with generally regulating and overseeing the
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`[administrative] process.’” (alterations and omissions in original) (citations omitted)). The FDA
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`has not taken any specific action toward Defendants. Its regulatory regime was merely part of
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`the backdrop that motivated the deal.
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`The H & R Block case that the Commission relies on dealt with an agency that played a
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`much more direct role in prompting the challenged merger. There, the government alleged that a
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`do-it-yourself tax preparation company negotiated the acquisition of a competitor to stop it from
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`disrupting the industry. See 789 F. Supp. 2d at 77. One of the competitor’s prominent moves
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`Case 1:21-cv-00873-RC Document 58 Filed 04/20/21 Page 15 of 18
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`involved a public-private partnership between tax preparation companies and the D.C.-based
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`Internal Revenue Service that let qualified taxpayers prepare and file their taxes for free. Id.
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`The competitor introduced an offer through the partnership that was free to all U.S. taxpayers,
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`forcing major players in the industry to follow suit. Id. The industry then lobbied for restricting
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`the type and number of taxpayers that could receive the partnership’s free services, which the
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`IRS eventually did. Id. Because “facts underlying the complaint took place” in the District and
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`IRS employees would likely be witnesses, the government asserted that its choice of forum was
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`entitled to deference. Id. at 79. The court agreed. Id. at 79–80. But the factors that drove that
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`decision are not present here. In H & R Block, the IRS had a direct hand in the events that led to
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`the challenged transaction. It partnered with tax preparation companies and, in response to
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`lobbying, reduced industry participants’ ability to compete through that partnership. By contrast,
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`the FDA’s sole involvement in this case is that GRAIL will one day ask it to approve Galleri for
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`sale. The agency plays just the passive, background role of industry regulator. Indeed, it is
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`telling that no party has indicated that FDA employees will serve as witnesses. The FDA’s
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`approval process thus does not connect the case with this forum.
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`Having determined that this case lacks a meaningful connection to the District other than
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`the fact that the Commission is located here, the Court will not defer to the Commission’s choice
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`of forum. See First Tenn. Bank, 856 F. Supp. 2d at 192. That means the Defendants’ choice
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`deserves greater weight. See Mazzarino, 955 F. Supp. 2d at 31. And because the only contrary
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`factor is diminished, the private interest factors collectively weigh toward transfer.
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`C. The Public Interest Factors Are