Case: 23-60167 Document: 328 Page: 1 Date Filed: 10/25/2023
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`David R. Marriott
`dmarriott@cravath.com
`T+1-212-474-1430
`New York
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`October 25, 2023
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`Mr. Lyle W. Cayce
`Clerk of the Court
`United States Court of Appeals for the Fifth Circuit
`F. Edward Hebert Building
`600 S. Maestri Place, Suite 115
`New Orleans, LA 70130-3408
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`Re: Illumina, Inc. and Grail, Inc., Petitioners v. Federal Trade Commission,
`Respondent, No. 23-60167 (argued Sept. 12, 2023)
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`Dear Mr. Cayce:
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`This letter responds to the Court’s order of October 18, 2023 in the above-referenced appeal,
`requesting letter briefing on the status of the proceedings before the European Commission (the
`“EC”) and the impact, if any, of the EC’s October 12, 2023 order on this case.
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`The status of the appeal proceedings in Europe has not changed since the commencement of
`Petitioners’ appeal before this Court. As summarized in Petitioners’ Brief in support of their
`Motion to Expedite Appeal (Dkt. No. 5-1), Illumina has challenged the EC’s assertion of
`jurisdiction to review the Transaction and has appealed the jurisdictional ruling of the first
`instance court to the European Court of Justice. That appeal remains pending, as does
`Illumina’s challenge of the EC’s prohibition decision before the European General Court.
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`The EC’s October 12th order has no impact on those proceedings or this case. The order is a
`divestiture order only and is therefore similar to the order entered by the FTC that is subject to
`the present appeal. The EC order is subject to judicial review and a possible suspension, and it
`has no immediate effect in that the order does not require Illumina to divest Grail for at least
`one year, and is contingent on the outcome of the pending jurisdictional appeal. Should the
`Court of Justice agree with Illumina that the EC’s assertion of jurisdiction is unlawful, the
`divestiture order will be extinguished, and the hold separate obligations imposed by the EC will
`be lifted immediately. At present, a hearing on Illumina’s jurisdictional appeal is not yet
`scheduled. If a hearing is scheduled for before the end of this year, Illumina anticipates a
`decision by mid-2024.
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`Case: 23-60167 Document: 328 Page: 2 Date Filed: 10/25/2023
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`Respectfully submitted,
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`/s/ David R. Marriott
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`Cc: Counsel of record (via CM/ECF)
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