Bona Law Submits Amici Curiae Brief on Behalf of 34 Members of Congress with a Special Interest in the Illumina-Grail Merger
June 13, 2023
Bona Law represented 34 Members of Congress as amici curiae in the Fifth Circuit Court of Appeals’ review of the Federal Trade Commission’s decision to block the Illumina-Grail merger. The FTC’s April 2023 decision marks the first time that it reversed its own Administrative Law Judge who ruled, also for the first time, in favor of merging parties fighting an FTC challenge.
The Members of Congress (32 Members of the House of Representatives and 2 Senators) believe the FTC’s decision to block the Illumina-Grail merger exceeds the authority delegated by Congress and threatens the health and well-being of Americans by hindering the development of potentially life-saving cancer detection technology.
On their behalf, Bona Law challenged the FTC’s decision as a violation of the “major questions” doctrine—which counsels judicial skepticism toward agency action with substantial “economic and political significance” that exceeds the authority granted by Congress to an agency to implement and enforce the law.
The brief also questions the FTC’s market analysis as insufficient to support the “substantial lessening of competition” standard—a prerequisite to a merger block.
The forthcoming Fifth Circuit decision could be a landmark in merger jurisprudence—an exciting antitrust hotspot to watch. The Bona Law team that submitted the brief included Luis Blanquez, Steven Cernak, Aaron Gott, Luke Hasskamp and Patrick Pascarella.