Case: 23-60167 Document: 157 Page: 1 Date Filed: 06/14/2023
`
`No. 23-60167
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`–––––––––––––––––––––––––––––––––––––––––––––
`ILLUMINA, INC. AND GRAIL, INC.,
`Petitioners,
`v.
`FEDERAL TRADE COMMISSION
`Respondent.
`–––––––––––––––––––––––––––––––––––––––––––––
`FEDERAL TRADE COMMISSION’S UNOPPOSED MOTION
`TO FILE BRIEF IN EXCESS OF WORD LIMITATION
`–––––––––––––––––––––––––––––––––––––––––––––
`
`
`
`
`
`
`ANISHA S. DASGUPTA
`General Counsel
`MATTHEW M. HOFFMAN
`Attorney
`FEDERAL TRADE COMMISSION
`600 Pennsylvania Avenue, NW
`Washington, D.C. 20580
`(202) 326-3097
`mhoffman@ftc.gov
`
`
`
`
`
`
`
`
`

`

`Case: 23-60167 Document: 157 Page: 2 Date Filed: 06/14/2023
`
`Respondent, the Federal Trade Commission, respectfully moves for leave to
`
`file an opposition brief of up to 16,000 words, which would give the FTC parity
`
`with Petitioners (who filed a brief with 15,920 words). Petitioners do not object to
`
`the FTC’s request. In support of the motion, the FTC states as follows.
`
`1.
`
`This is a complex antitrust case with a voluminous record. Petitioners
`
`Illumina, Inc. and GRAIL, Inc. (collectively, “Illumina”) have raised a large
`
`number of issues, including both substantive antitrust arguments and constitutional
`
`challenges to the Commission’s structure and its proceedings.
`
`2.
`
`In view of the case’s complexity, Illumina filed a motion on May 25,
`
`2023, asking for an additional 3,000 words beyond the limitations set forth in Rule
`
`32 for its opening brief and an additional 1,500 words for its reply brief. Illumina’s
`
`motion noted that “Petitioners have no objection to the FTC having an additional
`
`3,000 words for its responsive brief.”
`
`3.
`
`In its response, the FTC took no position on whether Illumina’s
`
`request should be granted, but stated that it did not object to extra-long briefs as
`
`long as both sides have the same word limit.
`
`4.
`
`Illumina filed its opening brief on June 5. At that time, the Court had
`
`not yet ruled on Illumina’s motion for additional words. Illumina certified that its
`
`brief contained 15,920 words.
`
`

`

`Case: 23-60167 Document: 157 Page: 3 Date Filed: 06/14/2023
`
`5.
`
`On June 14, the Court granted Illumina’s motion for additional words,
`
`but its order did not address the FTC’s word limit.
`
`6.
`
`The Federal Rules of Appellate Procedure contemplate that each side
`
`will have the same number of words for its principal brief. See Fed. R. App. P.
`
`32(a)(7). In addition, given the complexity of the case and the number of issues
`
`that Illumina has raised, the FTC needs an equal amount of words to adequately
`
`respond to Illumina’s arguments.
`
`Because the request is reasonable under the circumstances and is not
`
`opposed, the Court should grant the FTC’s request and allow it to file an
`
`opposition brief of up to 16,000 words.
`
`
`
`
`
`June 14, 2023
`
`
`
`
`Respectfully submitted,
`
`ANISHA S. DASGUPTA
`General Counsel
`
`
`/s/ Matthew M. Hoffman
`MATTHEW M. HOFFMAN
`Attorney
`FEDERAL TRADE COMMISSION
`600 Pennsylvania Avenue, N.W.
`Washington, D.C. 20580
`(202) 326-3097
`
`2
`
`

`

`Case: 23-60167 Document: 157 Page: 4 Date Filed: 06/14/2023
`
`CERTIFICATE OF COMPLIANCE
`I certify that the foregoing complies with the type-volume limit of Fed. R.
`
`App. P. 27(d)(2)(A) because, excluding the parts of the document exempted by Fed.
`
`R. App. P. 32(f), it contains 336 words. It complies with the typeface and type-style
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`requirements of Fed. R. App. P. 32(a)(5) and (a)(6) and 5th Cir. R. 32.1 because the
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`text is in 14-point Times New Roman type and the footnotes are in 12-point Times
`
`/s/ Matthew M. Hoffman
`Matthew M. Hoffman
`
`New Roman type.
`
`June 14, 2023
`
`
`
`
`
`

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