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`Office of the General Counsel
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`UNITED STATES OF AMERICA
`Federal Trade Commission
`Washington, D.C. 20580
`
`September 29, 2023
`
`Lyle W. Cayce
`Clerk of the Court
`United States Court of Appeals for the Fifth Circuit
`600 S. Maestri Place
`New Orleans, LA 70130-3408
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`Illumina, Inc. v. FTC, No. 23-60167 (argued Sept. 12, 2023)
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`Re:
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`Dear Mr. Cayce:
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`At the oral argument in this case, Judge Higginson noted that the Joint
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`Appendix submitted by the parties did not contain certain portions of the
`administrative record. Although the Joint Appendix contains “the portions of the
`record relied on by the parties in their briefs,” as required by 5th Cir. Rule 30.2(a),
`Judge Higginson was correct that the Joint Appendix does not include all of the
`record materials cited in the Commission’s decision.
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`As the Court is aware, the record in this case is voluminous and contains
`many documents that were accorded in camera treatment by the Commission.
`Accordingly, the Commission opted to file a certified list of all materials in the
`record, rather than the full administrative record. See Fed. R. Civ. P. 17(b)(1)(B).
`Nonetheless, “[a]ll parts of the record retained by the agency are a part of the record
`on review for all purposes.” Fed. R. App. P. 17(b)(3). Thus the Court’s review is not
`limited to the materials included in the Joint Appendix. To the extent the Court
`wishes to review any other portions of the administrative record, the Commission
`will provide them as required by Rule 17(b)(3).
`Respectfully,
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`/s/ Anisha S. Dasgupta
`
`Anisha S. Dasgupta
`General Counsel
`Federal Trade Commission
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`Cc: Counsel of record (via CM/ECF)
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