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FTC Does Not See A Need For More Experts At Illumina Merger Trial

 |  August 4, 2021

The Federal Trade Commission (FTC) is resisting a bid from Illumina to call two additional witnesses at the agency’s upcoming antitrust trial, claiming the request from the life sciences company is an effort to conduct a “trial-by-expert” proceeding.

A 2009 FTC rule provides that a party must show “extraordinary circumstances” to be allowed to call more than five witnesses, and agency lawyers said in a Friday, July 30, filing that Illumina, fighting to keep a US$7.1 billion merger with Grail alive, had not met that threshold.

Related: Illumina Hires Sidley, DLA Piper To Lobby Against FTC Merger Challenge

An administrative law judge did not immediately rule on Illumina’s request to add two witnesses. A lawyer for Illumina, Sharonmoyee Goswami, a litigation partner at Cravath, Swaine & Moore, did not return a message on Monday seeking comment. Grail, which makes a “multi-cancer early detection” test, is represented by Latham & Watkins.

The merger trial is set to begin August 24. The case has garnered significant attention as a rare effort from regulators to stop a vertical merger of companies that are not directly competing in the same market. Grail and its competitors rely on Illumina’s DNA sequencing technology, the FTC asserts, and Illumina’s acquisition of Grail would reduce innovation.

“(T)his case involves numerous, complex issues and technical areas giving rise to extraordinary circumstances that require the designation of two additional experts,” Illumina’s lawyers stated in their July 26 filing.

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