The Federal Trade Commission on Monday ordered Illumina Inc. to divest Grail Inc., the cancer test maker it acquired in 2021 for $7.1 billion, saying that “the deal would stifle competition and innovation in the U.S. market for lifesaving cancer tests.”
which specializes in gene-sequencing devices, said it would appeal the decision in a federal appeals court, thus staying the order until an appeals verdict is reached.
Illumina stock was last down 2.5% in volume of 1.2 million shares, equal to 91% of its 65-day average daily volume.
Grail, which Illumina helped found before spinning it off in 2016, makes noninvasive, multi-cancer early detection (MCED) tests that use DNA sequencing to screen for cancers in patients who are asymptomatic. The tests, known as liquid biopsy tests, can be used for many types of cancer, including ones for which there are currently no screening options.
The FTC’s release said that Illumina “is currently, and for the reasonably near future, will remain the only viable supplier of a critical input: NSG platforms necessary for MCED tests.”
The company could “easily foreclose GRAIL’s competitors by raising their costs or withholding or degrading access to supply, service, or new technologies — inputs on which MCED test developers rely,” the release continued. That is “extremely concerning,” said the FTC, given the vital role early screening for cancer plays in healthcare.
The order reverses an administrative law judge’s initial decision on the matter.
“Following the FTC Chief Administrative Law Judge’s decision in favor of Illumina in September 2022, Illumina believes that it has a strong case on appeal,” Illumina said in a statement. The Wall Street Journal noted that Illumina completed its Grail acquisition in 2021 despite concerns from regulators in the U.S. and Europe.
The FTC noted that Illumina has a strong financial incentive to ensure Grail wins the innovation race than its competitors and is unlikely to support rival test makers. The agency noted that Illumina had already given Grail special pricing and other benefits while the company was in its ownership and had sought to address competition concerns via supply agreements with its oncology customers.
But that’s an “ineffective remedy” that addresses harm on an ad hoc basis, said the FTC.
“Ultimately, the opinion holds that letting competition spur through innovation among MCED test providers would do more to save lives than allowing a monopolist to vertically integrate and capture the market,” said the FTC.
The opinion was unanimous, while the sole Republican on the FTC commission, Christine S. Wilson, issued a concurring opinion before stepping down on Friday, said the agency.
Illumina’s acquisition of Grail has drawn criticism from activist investor Carl Icahn, who has been waging a proxy fight against the company and seeking to place three directors on its board. Among other measures, Icahn is seeking to restore the company’s former CEO Jay Flatley to replace current CEO Francis De deSouza, according to The Wall Street Journal.
Icahn reportedly told the company the Grail deal had cost shareholders $50 billion. Illumina has responded by that it’s not in shareholders best interest to appoint Icahn’s nominees.