Case: 23-60167 Document: 1-1 Page: 1 Date Filed: 04/05/2023
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`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`
`ILLUMINA, INC. AND GRAIL, INC.,
`Petitioners,
`
`v.
`FEDERAL TRADE COMMISSION,
`Respondent.
`
`
`
` Docket No._________________
`
`
`PETITION FOR REVIEW
`Petitioners Illumina, Inc. (“Illumina”) and GRAIL, Inc. (now known as
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`GRAIL, LLC) (“GRAIL”, and with Illumina, “Petitioners”) petition this Court for
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`review of the Final Order of the Federal Trade Commission (“FTC” or
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`“Commission”), including but not limited to the Opinion of the Commission, in the
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`matter styled In re Illumina, Inc. and GRAIL, Inc., Docket No. 9401, which was
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`dated March 31, 2023 and issued and served on April 3, 2023. Copies of the
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`Commission’s Final Order and the public Opinion of the Commission are attached
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`to this Petition pursuant to Fifth Circuit Rule 15.1.
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`JURISDICTION AND VENUE
`Pursuant to 15 U.S.C. § 45(c), this Court has jurisdiction over this Petition.
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`

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`Case: 23-60167 Document: 1-1 Page: 2 Date Filed: 04/05/2023
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`ORDER FOR REVIEW
`Pursuant to Federal Rule of Appellate Procedure 15(a) and 15 U.S.C.
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`§ 45(c), Petitioners pray that the Final Order be set aside. Petitioners challenge all
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`aspects of the Final Order, and any ancillary or predicate rulings, including the
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`Opinion of the Commission.
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`PRAYER FOR RELIEF
`Petitioners Illumina and GRAIL pray that this Court review and set aside the
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`Commission’s Final Order as provided by law.
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`Dated: April 4, 2023
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`Respectfully submitted,
`
`
`/s/ David R. Marriott
`David R. Marriott
`Christine A. Varney
`Sharonmoyee Goswami
`Michael J. Zaken
`Jesse M. Weiss
`CRAVATH, SWAINE & MOORE LLP
`Worldwide Plaza
`825 Eighth Avenue
`New York, NY 10019
`Telephone: (212) 474-1000
`
`Counsel for Petitioner Illumina, Inc.
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`Case: 23-60167 Document: 1-1 Page: 3 Date Filed: 04/05/2023
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`/s/ David L. Johnson
`Michael G. Egge
`Marguerite M. Sullivan
`Anna M. Rathbun
`David L. Johnson
`LATHAM & WATKINS LLP
`555 Eleventh Street NW
`Suite 1000
`Washington, D.C. 20004
`Telephone: (202) 637-2200
`
`Alfred C. Pfeiffer
`LATHAM & WATKINS LLP
`505 Montgomery Street
`Suite 2000
`San Francisco, CA 94111-6538
`Telephone: (415) 391-0600
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`
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`Counsel for Petitioner GRAIL, LLC
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`3
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`Case: 23-60167 Document: 1-1 Page: 4 Date Filed: 04/05/2023
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`UNITED STATES OF AMERICA
`BEFORE THE FEDERAL TRADE COMMISSION
`
`
`COMMISSIONERS:
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`
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`
`
`In the Matter of
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`Illumina, Inc.,
` a corporation;
`
`and
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`GRAIL, Inc.,
` a corporation.
`
`Lina M. Khan, Chair
`Rebecca Kelly Slaughter
`Christine S. Wilson
`Alvaro M. Bedoya
`
`
`
`
`
`
`
`
`
`Docket No. 9401
`PUBLIC
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`
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`A.
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`B.
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`C.
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`D.
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`It is hereby ORDERED:
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`
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`FINAL ORDER
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`I. Definitions
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`As used in this Order (“Order”), the following definitions shall apply:
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`“Acquisition” means the acquisition by Illumina of the remaining ownership interest in
`GRAIL that Illumina did not own prior to the Acquisition Date.
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`“Acquisition Date” means August 18, 2021.
`
`“Acquirer” means the Person that acquires the Hold Separate Business from Respondents
`pursuant to this Order. In the event of a divestiture effectuated through a corporate spin-
`off or offering of shares directly to investors, “Acquirer” shall mean the new,
`independent corporate entity.
`
`“Business Information” means books, records, data, and information, wherever located
`and however stored, including documents, written information, graphic materials, and
`data and information in electronic format. Business Information includes records and
`information relating to sales, marketing, advertising, personnel, accounting, business
`strategy, algorithms, machine learning data, artificial intelligence, clinical trials and
`studies, information technology systems, customers, suppliers, research and development,
`registrations, licenses, permits, and operations.
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`

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`Case: 23-60167 Document: 1-1 Page: 5 Date Filed: 04/05/2023
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`PUBLIC
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`“Commission” or “FTC” or “Complaint Counsel” means the Federal Trade Commission.
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`“Confidential Information” means nonpublic Business Information.
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`“Consent” means an approval, consent, ratification, waiver, or other authorization.
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`“Contract” means an agreement, contract, lease, license agreement, consensual
`obligation, promise or undertaking with one or more third parties, whether written or oral,
`express or implied, or legally binding.
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`“Respondents” mean Illumina and GRAIL.
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`“Direct Cost” means a cost not to exceed the actual cost of labor, materials, travel, and
`other expenditures. The cost of any labor included in Direct Cost shall not exceed the
`then-current average hourly wage rate for the employee providing such labor.
`
`“Divest” means to transfer ownership of the Hold Separate Business through sale to an
`Acquirer, or through a spin-off or public stock offering.
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`“Divestiture Agreement” means any agreement, including all exhibits, attachments,
`agreements, schedules, and amendments thereto, and through which Respondents (or the
`Divestiture Trustee) transfer ownership of the Hold Separate Business through sale to an
`Acquirer, or through a spin-off or public stock offering.
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`“Divestiture Date” means the date Respondents (or the Divestiture Trustee) close on a
`transaction to Divest the Hold Separate Business.
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`“Divestiture Trustee” means the Person appointed pursuant to Section VI of this Order.
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`“Governmental Authorizations” means a Consent, license, registration, pending
`application, clearance, authorization, approval, or permit that is issued, granted, given, or
`otherwise made available by or under the authority of any governmental body or pursuant
`to any legal requirement.
`
`“GRAIL” means GRAIL, LLC, its directors, officers, employees, agents, representatives,
`successors, and assigns; the joint ventures, subsidiaries, partnerships, divisions, groups,
`and affiliates controlled by GRAIL, LLC, and the respective directors, officers, general
`partners, employees, agents, representatives, successors, and assigns of each.
`
`“GRAIL Assets” means all rights, title, and interest in and to all tangible and intangible
`property and assets, of every kind and description, wherever located, and any
`improvements or additions thereto, used in or relating to the GRAIL Business, or
`acquired in connection with the Acquisition, including:
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`1.
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`All real property interests (including fee simple interests and real property
`leasehold interests), including all easements, and appurtenances, together with all
`buildings and other structures, facilities, and improvements located thereon,
`owned, leased, or otherwise held;
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` 2
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`
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`E.
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`F.
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`G.
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`H.
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`I.
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`J.
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`K.
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`L.
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`M.
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`N.
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`O.
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`P.
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`Q.
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`Case: 23-60167 Document: 1-1 Page: 6 Date Filed: 04/05/2023
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`PUBLIC
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`All equipment;
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`All accounts receivable;
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`All inventories;
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`All Business Information;
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`All Intellectual Property;
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`All Contracts and all outstanding offers or solicitations to enter any contract, and
`all rights thereunder and related thereto; and
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`All Governmental Authorizations and all pending applications therefor or
`renewals thereof, to the extent transferable.
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`“GRAIL Business” means (1) the business in which GRAIL was engaged prior to the
`Acquisition Date, including the business of developing, marketing, and selling NGS-
`based oncology tests such as multi-cancer early detection (“MCED”) tests, and (2) any
`improvements, developments, expansions, and changes to the business in which GRAIL
`has or is engaged since the Acquisition Date.
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`“GRAIL Employees” means all persons who were employed by GRAIL at any time
`between September 21, 2020, and the Divestiture Date, including contractors,
`representatives, and consultants.
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`“GRAIL Executive” means any person serving in a position (including positions that are
`the functional equivalent) of GRAIL Chief Executive Officer, Chief Medical Officer,
`President, Chief Financial Officer, Chief Operating Officer, Chief Security Officer, Chief
`Marketing Officer, Chief Commercial Officer, Chief Technology Officer, General
`Counsel, and anyone serving at the Vice President level (or higher) with responsibilities
`for sales, marketing, R&D, product development, corporate development, strategy,
`investor relations, regulatory affairs, government affairs, or financial planning.
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`“Hold Separate Business” means the (1) GRAIL Assets and (2) GRAIL Business.
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`“Hold Separate Manager” means the individual appointed pursuant to Paragraph IV.A of
`this Order.
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`“Hold Separate Period” means the period between the date this Order is issued and the
`Divestiture Date.
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`“Illumina” means Illumina, Inc., its directors, officers, employees, agents,
`representatives, successors, and assigns; and the joint ventures, subsidiaries, partnerships,
`divisions, groups, and affiliates controlled by Illumina Inc., and the respective directors,
`officers, general partners, employees, agents, representatives, successors, and assigns of
`each.
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` 3
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`
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`R.
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`S.
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`T.
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`U.
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`V.
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`W.
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`X.
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`Case: 23-60167 Document: 1-1 Page: 7 Date Filed: 04/05/2023
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`PUBLIC
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`Y.
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`Z.
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`“Illumina Restricted Executive” means any person serving in the following positions at
`Illumina (including positions that are the functional equivalent): Chief Executive Officer,
`President, Chief Operating Officer, and Chief Commercial Officer.
`
`“Intellectual Property” means all intellectual property, including: (1) all patents, patent
`applications, inventions, and discoveries that may be patentable; (2) all know-how, trade
`secrets, software, technical information, data, algorithms, artificial intelligence, machine
`learning data, registrations, applications for governmental approvals, inventions,
`processes, best practices (including clinical pathways), formulae, protocols, standards,
`methods, techniques, designs, quality-control practices and information, research and test
`procedures and information, and safety, environmental and health practices and
`information; (3) all confidential or proprietary information, commercial information,
`management systems, business processes and practices, qualification and approval
`practices and information, training materials, sales and marketing materials, customer
`support materials, advertising and promotional materials; and (4) commercial names, all
`assumed fictional business names, trade names, “doing business as” (d/b/a names),
`registered and unregistered trademarks, service marks and applications, and trade dress;
`(5) all registered and unregistered copyrights in both published works and unpublished
`works; (6) all rights in internet web sites and internet domain names presently used; and
`(7) all rights in any jurisdiction to limit the use or disclosure of any of the foregoing, and
`rights to sue and recover damages or obtain injunctive relief for infringement, dilution,
`misappropriation, violation, or breach of any of the foregoing.
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`AA.
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`“Monitor” means the Person appointed pursuant to Section V of this Order.
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`“Person” means any natural person, partnership, corporation, association, trust, joint
`venture, government, government agency, or other business or legal entity.
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`“Transition Assistance” means technical services, personnel, assistance, training,
`cooperation, and other logistical, administrative, and transitional support as required by
`the Acquirer to facilitate the transfer of the Hold Separate Business to the Acquirer,
`including with respect to: audits, finance and accounting, accounts receivable, accounts
`payable, employee benefits, payroll, pensions, human resources, purchasing, quality
`control, transfer of information technology and related systems, use of any name or brand
`used in the GRAIL Business for transitional purposes, Governmental Authorizations,
`regulatory approval and compliance, research and development, sales and marketing, and
`supply chain management.
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`II. Divestiture and Other Obligations
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`IT IS FURTHER ORDERED that:
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`No later than 180 days from the date this Order is issued, Illumina shall Divest,
`absolutely and in good faith, and at no minimum price, the Hold Separate Business in
`accordance with a detailed divestiture plan that has been approved by the Commission
`and that identifies, as applicable, the proposed buyer of the Hold Separate Business,
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`BB.
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`CC.
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`A.
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`Case: 23-60167 Document: 1-1 Page: 8 Date Filed: 04/05/2023
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`PUBLIC
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`Provided, however, that the Commission may approve, as part of the divestiture plan, a
`period longer than 180 days for Illumina to Divest the Hold Separate Business,
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`Provided, further, that Illumina may retain an investment in GRAIL equal to the amount
`of its investment prior to the Acquisition Date, which shall not exceed 12 percent on a
`fully-diluted basis, as provided in the divestiture plan.
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`B.
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`Any Divestiture Agreement shall be incorporated by reference into this Order and made a
`part hereof, and any failure by Respondents to comply with the terms of the Divestiture
`Agreement shall constitute a violation of this Order,
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`Provided, however, that no Divestiture Agreement shall limit, or be construed to limit,
`the terms of this Order. To the extent any provision in the Divestiture Agreement varies
`from or conflicts with any provision in this Order such that Respondents cannot fully
`comply with both, Respondents shall comply with the Order.
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`C.
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`Respondents shall:
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`1.
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`2.
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`Offer to furnish to prospective Acquirers all information and documents relating
`to the Hold Separate Business customarily provided in a due diligence process
`except such information or documents subject to the attorney-client privilege or
`work-product doctrine. Respondents shall permit prospective Acquirers of the
`Hold Separate Business to have reasonable access to personnel, to physical
`facilities for inspection, and to all financial, operational, or other documents and
`information customarily provided as part of a due diligence process, and
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`Require all prospective Acquirers to sign a confidentiality agreement pursuant to
`which that prospective Acquirer shall be required to maintain all Confidential
`Information obtained as part of the due diligence process as strictly confidential,
`including the nondisclosure of that information to all other employees, executives,
`or other personnel of the prospective Acquirer that were not involved in the due
`diligence process. Respondents shall require, as part of a confidentiality
`agreement, that the prospective Acquirer limit access to Confidential Information
`to only those employees necessary to conduct sufficient due diligence.
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`D.
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`Respondents shall obtain, no later than the Divestiture Date and at their sole expense, all
`Consents from third parties and all Governmental Authorizations that are necessary to
`affect the complete transfer and divestiture of the Hold Separate Business to the Acquirer
`or for the Acquirer to operate any aspect of the Hold Separate Business;
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`Provided, however:
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`1.
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`Respondents may satisfy the requirement to obtain all Consents from third parties
`by certifying that the Acquirer has entered into equivalent agreements or
`arrangements directly with the relevant third parties, or has otherwise obtained all
`necessary Consents and waivers; and
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`PUBLIC
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`2.
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`With respect to any Governmental Authorizations that are not transferable,
`Respondents shall, to the extent permitted under applicable law, allow the
`Acquirer to operate under Respondents’ Governmental Authorizations pending
`the Acquirer’s receipt of its own Governmental Authorizations, and Respondents
`shall provide such assistance as the Acquirer may reasonably request in
`connection with its efforts to obtain such Governmental Authorizations.
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`E.
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`At the option of the Acquirer, Illumina shall provide the Acquirer with Transition
`Assistance sufficient to efficiently transfer the Hold Separate Business to the Acquirer,
`and assist the Acquirer in operating the Hold Separate Business in all material respects in
`the manner in which it was operated prior to the Acquisition and prior to the Divestiture
`Date.
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`1.
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`Illumina shall provide such Transition Assistance:
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`a.
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`b.
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`c.
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`As set forth in the Divestiture Agreement, or as otherwise reasonably
`requested by the Acquirer;
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`At the price set forth in the Divestiture Agreement, or if no price is set
`forth, at Direct Cost; and
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`Until the Acquirer can operate the Hold Separate Business in all material
`respects in the manner in which it was operated prior to the Acquisition
`and prior to the Divestiture Date, or for a period of 2 years from the date
`the Hold Separate Business is transferred to an Acquirer pursuant to
`Paragraph II.A of this Order, whichever is later.
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`2.
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`3.
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`Illumina shall allow the Acquirer to terminate, in whole or part, any Transition
`Assistance provisions of the Divestiture Agreement upon commercially
`reasonable notice and without cost or penalty.
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`Illumina shall not cease providing Transition Assistance due to a breach by the
`Acquirer of the Divestiture Agreement, and shall not limit any damages
`(including indirect, special, and consequential damages) that the Acquirer would
`be entitled to receive in the event of Respondents’ breach of the Divestiture
`Agreement.
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`F.
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`Respondents shall allow the Acquirer to recruit and employ any GRAIL Employees in
`connection with the divestiture of the Hold Separate Business, including as follows:
`
`1.
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`No later than 5 days after execution of a Divestiture Agreement, Respondents
`shall (a) identify each GRAIL Employee, (b) allow the Acquirer an opportunity to
`interview any GRAIL Employee, and (c) allow the Acquirer to inspect the
`personnel files and other documentation relating to any GRAIL Employee, to the
`extent permissible under applicable laws.
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`Case: 23-60167 Document: 1-1 Page: 10 Date Filed: 04/05/2023
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`PUBLIC
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`2.
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`3.
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`Illumina shall (a) not offer any incentive to any GRAIL Employee to decline
`employment with the Acquirer, (b) remove any contractual impediments that may
`deter any GRAIL Employee from accepting employment with the Acquirer,
`including any non-compete or confidentiality provisions of employment or other
`contracts that would affect the ability of the GRAIL Employee to be employed by
`the Acquirer, and (c) not otherwise interfere with the recruitment of any GRAIL
`Employee by the Acquirer.
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`Respondents shall (a) vest all current and accrued pension benefits within 30 days
`of transition of employment to the Acquirer for every GRAIL Employee who
`accepts an offer of employment from the Acquirer, and (b) provide all GRAIL
`Employees with reasonable financial incentives to accept a position with the
`Acquirer.
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`Provided, further, that Respondents and the Acquirer will work together in good faith to
`determine whether any other Illumina employees should be identified and subject to the
`provisions of this Paragraph II.F.
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`G.
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`Respondents shall transfer to the Acquirer, at Respondents’ expense, all Business
`Information related to the Hold Separate Business, and:
`
`1.
`
`2.
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`Deliver such Business Information as follows: (a) in good faith; (b) as soon as
`practicable, avoiding any delays in transmission; and (c) in a manner that ensures
`its completeness and accuracy and that fully preserves its usefulness;
`
`Pending complete delivery of all such Business Information to the Acquirer,
`provide the Acquirer and Monitor with access to all such Business Information
`and employees who possess or can locate information for the purposes of
`identifying the books, records, and files that contain such Business Information
`and facilitate the delivery in a manner consistent with this Order.
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`Until 2 years after the Divestiture Date, the provisions of Paragraphs III.F – III.I of this
`Order shall remain in effect. Respondents shall implement, in consultation with the
`Monitor, all necessary measures to ensure its compliance with those provisions.
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`Until 5 years after the Divestiture Date, the provisions of Paragraph III.K of this Order
`shall remain in effect. Respondents shall implement, in consultation with the Monitor, all
`necessary measures to ensure its compliance with those provisions.
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`H.
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`I.
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`J.
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`Illumina shall, no later than 5 days after the date this Order becomes final and effective:
`
`1.
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`Require that each employee of Illumina who has, had, or may have had access to
`Confidential Information relating to the Hold Separate Business, and the direct
`supervisor(s) of any such employee, sign a confidentiality agreement pursuant to
`which that employee shall be required to maintain all Confidential Information
`related to the Hold Separate Business as strictly confidential, including the
`nondisclosure of that information to all other employees, executives, or other
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`PUBLIC
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`personnel of Illumina (other than as necessary to comply with the requirements of
`this Order), or the use of such Confidential Information in any way.
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`2.
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`Provide written notification of the restrictions on the use and disclosure of the
`Confidential Information related to the Hold Separate Business by Illumina’s
`personnel to all its employees who (a) may be in possession of such Confidential
`Information or (b) may have access to such Confidential Information. Illumina
`shall give the above-described notification by e-mail with return receipt requested
`or similar transmission and keep a file of those receipts for 2 years after the date
`this Order becomes final and effective. Illumina shall maintain complete records
`of all such notifications and shall provide a certification to the Commission
`affirming the implementation of, and compliance with, this Paragraph II.J.
`
`III. Hold Separate and Asset Maintenance Obligations
`
`IT IS FURTHER ORDERED that during the Hold Separate Period, or for a longer
`period of time pursuant to Paragraphs II.H and II.I:
`
`Illumina shall not consolidate, integrate, coordinate, commingle, or otherwise combine
`the businesses, operations, services, locations, employees, Business Information, or
`products of the Hold Separate Business into or with any of its other businesses,
`operations, services, locations, employees, Business Information, or products.
`
`Provided, however, that Illumina may perform its obligations as required or allowed by
`this Order, a Divestiture Agreement, or an arms-length Contract between Illumina and the
`Hold Separate Business entered in the ordinary course of business as independent entities
`(whether entered before or during the Hold Separate Period).
`
`Illumina shall hold the Hold Separate Business separate, apart, and independent from
`Illumina, as required by the terms and conditions of this Order and shall vest the Hold
`Separate Business with all rights, powers, and authority necessary to conduct its business
`without involvement from Illumina. Illumina shall not exercise direction or control over
`the operations of the Hold Separate Business or the Hold Separate Manager, except to the
`extent explicitly permitted by this Order.
`
`Illumina shall not sell, transfer, or otherwise encumber the Hold Separate Business.
`
`Illumina shall take all actions necessary to maintain and preserve the full economic
`viability, competitiveness, independence, and marketability of the Hold Separate
`Business, including maintaining its operations, regulatory approvals, and research and
`development programs in the regular and ordinary course of business and in accordance
`with past practice, and to prevent the destruction, wasting, deterioration, or impairment of
`the Hold Separate Business, except for ordinary wear and tear, including among other
`things:
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`1.
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`Provide the Hold Separate Business with sufficient funding, financial resources,
`and working capital necessary for it to independently operate at least at rates of
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`A.
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`B.
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`C.
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`D.
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`PUBLIC
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`operation as of the Acquisition Date, and provided for in any planning documents
`or budgets, to meet all capital calls, and to carry on, at least at their scheduled
`pace, all research plans, development efforts, regulatory approvals, capital
`projects, budgets, business plans, and promotional activities;
`
`Maintain a separate accounting and balance sheet for the Hold Separate Business,
`and ensure that any sales and profits of the Hold Separate Business become and
`remain part of the Hold Separate Business, independent of Illumina;
`
`Provide such support services to the Hold Separate Business as were being
`provided to it as of or after the Acquisition Date, or as may be requested by the
`Hold Separate Manager or Monitor. For any services that Illumina may provide
`to the Hold Separate Business, Illumina may charge no more than the lesser of:
`(a) the same price, if any, charged to the Hold Separate Business for the service
`prior to the Hold Separate Period; or (b) its Direct Cost to provide such service;
`
`Ensure that the Hold Separate Business has the resources to maintain a work force
`at least equivalent in size, training, and expertise to the work force of the Hold
`Separate Business prior to the Acquisition Date, plus any expansion provided for
`in any planning documents, budgets, or forecasts; and
`
`Use best efforts to ensure the Hold Separate Business preserves and maintains its
`existing relationships with customers, suppliers, vendors, private and
`governmental entities, and others having business relations with the Hold
`Separate Business.
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`2.
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`3.
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`4.
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`5.
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`Provided, however, in connection with Divesting the Hold Separate Business, Illumina
`and the Hold Separate Manager may take actions that an Acquirer has requested or
`agreed to in writing and that have been approved in advance by the Monitor (in
`consultation with Commission staff), in all cases to facilitate the Acquirer’s acquisition of
`the Hold Separate Business consistent with the purposes of this Order.
`
`E.
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`Illumina shall ensure that GRAIL Employees are provided with reasonable financial
`incentives to continue in their positions consistent with past practices or otherwise
`necessary to preserve the Hold Separate Business’s viability, competitiveness,
`independence, and marketability. Such incentives shall include a continuation of all
`employee benefits, including regularly scheduled raises, bonuses, vesting of pension
`benefits (as permitted by law), and additional incentives necessary (including as may be
`determined by the Hold Separate Manager or Monitor) to ensure the continuation and
`prevent any diminution of the Hold Separate Business’s viability, competitiveness,
`independence, and marketability.
`
`F.
`
`GRAIL shall not employ any person as a GRAIL Executive who has served as an
`Illumina Restricted Executive during the preceding 5 years.
`
`Provided, however, that GRAIL shall have 60 days from the date this Order is issued to
`comply with this Paragraph III.F.
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`PUBLIC
`
`Provided, further, the Hold Separate Manager shall bi-annually review each GRAIL
`Executive’s holdings of financial interests or investments in Illumina (including stock
`ownership or options), as well as the GRAIL Executive’s current and future
`compensation structure, and may require divestment of holdings or changes to the
`compensation structure to avoid conflicts of financial interest, as the Manager may deem
`appropriate to satisfy the purposes of this Order.
`
`G.
`
`H.
`
`Illumina shall not hire any GRAIL Executive, or any person who served as a GRAIL
`Executive during the preceding 5 years.
`
`Illumina shall not, directly or indirectly, transfer any GRAIL employee or solicit or
`otherwise attempt to induce any GRAIL Employee to terminate his or her employment
`with the Hold Separate Business.
`
`Provided, however, Illumina may:
`
`1.
`
`2.
`
`3.
`
`Hire an employee whose employment has been terminated by GRAIL, as long as
`such termination was not solicited or induced in violation of this Order;
`
`Advertise for employees in newspapers, trade publications, or other media, or
`engage recruiters to conduct general employee search activities, in either case not
`targeted specifically at one or more GRAIL Employees; or
`
`Hire an employee who has applied for employment with Illumina, as long as such
`application was not solicited or induced in violation of this Order.
`
`I.
`
`Illumina shall ensure that any former GRAIL Employee who works for Illumina (but not
`GRAIL) after entry of this Order (as allowed in Paragraph III.H):
`
`1.
`
`2.
`
`3.
`
`Does not perform work on behalf of Illumina relating to MCED tests for at least 3
`years after becoming an employee of Illumina, other than in support of GRAIL;
`
`Does not use or share any GRAIL Confidential Information while he or she is an
`Illumina employee, except as explicitly permitted by this Order; and
`
`Is eligible, at the option of the Hold Separate Manager, to be recruited and hired
`by the Hold Separate Business, in a capacity and on a timetable as determined by
`the Hold Separate Manager, and that:
`
`a.
`
`b.
`
`Any impediments to recruiting or hiring of such employee, or to the
`employee accepting such offer, are removed by Illumina, including any
`non-compete or confidentiality provisions, or other contractual
`impediments that may deter or affect the ability of the employee to be
`employed by the Hold Separate Business; and
`
`Illumina offer no incentives to the employee to decline employment with
`the Hold Separate Business, and not otherwise interfere with the
`recruitment of any such employee by the Hold Separate Business.
`
`10
`
`
`
`

`

`Case: 23-60167 Document: 1-1 Page: 14 Date Filed: 04/05/2023
`
`PUBLIC
`
`J.
`
`Within 30 days of the date of this Order is issued, Respondents shall make an accounting
`of all Confidential Information of the Hold Separate Business that has been accessed or
`shared with Illumina and its employees or management, and (with the assistance and
`approval of the Monitor) develop and implement a plan to return all Confidential
`Information to the Hold Separate Business, and destroy all copies of, or notes derived
`from, the same, and to prevent the use of or access to the Confidential Information by
`Illumina or any other Person, except as may be allowed or required by this Order.
`
`K.
`
`Respondents shall ensure, and shall implement, in consultation with the Monitor, all
`necessary measures to ensure, that:
`
`1.
`
`2.
`
`3.
`
`4.
`
`Confidential Information is not shared or accessible between Illumina and
`GRAIL;
`
`Confidential Information is separately maintained and stored;
`
`Illumina does not obtain, use, or disclose (even to its own employees) any
`Confidential Information of GRAIL (including Confidential Information of third
`parties received by GRAIL in the ordinary course of business); and
`
`GRAIL does not obtain, use, or disclose (even to its own employees) any
`Confidential Information of Illumina (including Confidential Information of third
`parties received by Illumina in the ordinary course of business).
`
`Provided, however, that Respondents may disclose or use such Confidential Information
`in the course of (a) performing their obligations or as permitted under this Order, a
`Divestiture Agreement, or pursuant to an ordinary course, arms-length Contract between
`Illumina and the Hold Separate Business (whether entered before or during the Hold
`Separate Period) or (b) complying with financial reporting requirements, obtaining legal
`advice, prosecuting or defending legal claims or investigations, or enforcing actions
`threatened or brought against Illumina or the Hold Separate Business, or as required by
`law or regulation, including any applicable securities exchange rules or regulations.
`
`Illumina shall implement written procedures, subject to the approval of the Monitor and
`consistent with the provisions of this Order, that ensure the operational independence of
`the Hold Separate Business, the independent management of the Hold Separate Business
`by the Hold Separate Manager, the Hold Separate Business has adequate funding and
`working capital, and there are effective restrictions on access and use of Confidential
`Information. Illumina shall provi