After a storm of criticism, Lina Khan’s FTC has a $7 billion victory related to a cancer-test acquisition

The Fifth Circuit Court of Appeals issued the ruling last week, sending the case back to the U.S. Federal Trade Commission for a fresh review. While the sale is likely to “substantially lessen competition,” the court said, the trade regulator misapplied antitrust standards when conducting an internal assessment of the deal and its decision should be vacated.  

Still, Illumina said Sunday that it won’t pursue further appeals of the Fifth Circuit’s opinion, pointing out that it had previously stated it would divest Grail if it wasn’t successful with either its European Court of Justice jurisdictional appeal or in a final decision of the Fifth Circuit. The European Commission ordered the company to unwind the transaction in October.

The divestiture will be carried out via a third-party sale or capital markets transaction, and the company aims to finalize terms by the second quarter of 2024.

Shares of Illumina rose 3.7% Monday at the New York market open. They had fallen 37% this year as of Friday’s close.

Analysts at Evercore ISI wrote in a note Monday that they were pleased to see Illumina commit to a deadline and have “clarity on message,” adding that investors can now focus on the standalone company.

Illumina, a DNA-sequencing company based in San Diego, founded Grail, which has a blood test to detect about 50 types of early stages of cancer. Illumina spun Grail off in 2016, then sought to buy it back in a deal that closed in 2021. That led to a long, contentious battle with regulators who had not yet approved the transaction. Grail has been held separately since the reacquisition.

Illumina’s pursuit of Grail came at a significant cost. In July, the company was hit with a $476 million fine for acquiring Grail before the purchase was vetted by the European Union. Activist investor Carl Icahn argued in a two-month proxy fight that Illumina had wasted money by sticking with its aggressive pursuit of the acquisition, even over opposition from US and EU antitrust enforcers. During the battle with Icahn, the company’s chief executive officer resigned.

The FTC ruled unanimously in April that Illumina’s acquisition of Grail violated antitrust law, overturning an earlier decision by an in-house judge clearing the sale. The FTC had challenged the deal in 2021, arguing that it would stifle advances in the market for multi-cancer early detection tests and block competitors’ access to vital technology.