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Illumina Appeals FTC's Order to Divest Grail, Cites Government Overreach

NEW YORK – Illumina is attacking the US Federal Trade Commission's constitutionality as part of its appeal to overturn the agency's order to divest cancer testing firm Grail.

In their petitioner's brief, filed Monday in the US Court of Appeals for the Fifth Circuit, Illumina and Grail called the FTC's decision "a case of flagrant government overreach" and argued that "the FTC proceeding, from start to finish, was tainted by fundamental constitutional defects, each of which renders that proceeding unconstitutional and requires the Commission's decision be set aside."

"Sometimes the price of an unconstitutional agency can be measured in lost dollars. This time, the price is lost lives. This Court should reverse the Commission's decision and render judgment for Illumina and Grail, clearing the way for them to continue their life-saving work together," Illumina said.

In addition to questioning the agency's constitutionality, Illumina also asked the appellate court to rule on whether the agency erred in defining the relevant product market among other applications of law. 

The court also denied a request from the FTC to remove the case from expedited review. The FTC declined to comment on the brief.

Illumina noted that the FTC's own administrative law judge ruled in favor of Illumina after an administrative trial. That judge was unanimously overruled by the four-person commission in early April.

"FTC's actions have brought longstanding constitutional defects in the agency’s structure and proceedings into sharp focus," Illumina wrote in its brief. "Those defects should be quickly addressed so Illumina/Grail can make Galleri available to as many people as possible."

Illumina has also been fighting European regulators, who similarly want the company to undo its acquisition of Grail.