By Diane Bartz and Mike Scarcella
December 15 (Reuters) – A US appeals court on Friday overturned the US Federal Trade Commission’s order against Illumina ILMN.O purchase of Grail, maker of cancer diagnostic tests GRAL.Oa former subsidiary, says the agency applied the wrong legal standard in the antitrust case.
TThe New Orleans-based panel of the 5th U.S. Circuit Court of Appeals ordered a reconsideration of Illumina’s deal, in a 34-page order that marked a setback for the FTC.
A three-judge panel said the committee improperly held Illumina to a higher standard under U.S. antitrust law when weighing the company’s defenses to the takeover.
RRepresentatives for the FTC and Illumina did not immediately respond to requests for comment Friday.
San Diego-based Illumina had filed the appeal in June after the FTC demanded it divest Grail, with Illumina saying the agency had denied it due process.
Grail, which is valued at $7.1 billion under Illumina’s deal, is trying to bring to market a powerful test to diagnose many types of cancer based on a single blood test known as a liquid biopsy.
The companies have been battling both U.S. and European antitrust enforcers for more than two years.
The FTC is concerned that Illumina, the dominant provider of DNA sequencing of tumors and cancer cells that help patients find the best treatment option, could raise prices or refuse to sell to Grail’s rivals.
The agency filed a complaint to halt the deal in March 2021, but lost before an FTC administrative law judge. The case went back to FTC commissioners, who took the matter up again. Illumina then took it to an appeals court.
Despite the fight with the FTC and a similar battle in Europe, Illumina completed its acquisition of Grail in mid-2021.
Europe has since proposed measures for Illumina to unwind its acquisition of Grail. Illumina states that it does not do business in Europe and that the European Competition Authority therefore has no jurisdiction.
Illumina has pledged to continue selling its DNA sequencing services to other companies. It has offered to sign contracts to supply Grail’s rivals and not raise prices.
(Reporting by Mike Scarcella and Costas Pitas; Editing by Diane Craft)
((Costas.Pitas@thomsonreuters.com; Reuters reporting: @Cpitas at X))
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