Case: 23-60167 Document: 98 Page: 1 Date Filed: 06/05/2023
`
`
`
`No. 23-60167
`
`IN THE
`United States Court of Appeals
`FOR THE FIFTH CIRCUIT
`
`
`ILLUMINA, INC. AND GRAIL, INC.,
`
`v.
`
`FEDERAL TRADE COMMISSION,
`
`
`
`PETITION FOR REVIEW OF
`AN ORDER OF THE FEDERAL TRADE COMMISSION
`
`Petitioners,
`
`Respondent.
`
`PETITIONERS’ MOTION TO FILE DECISIONS BELOW UNDER SEAL
`
`SUBMITTED BY:
`
`
`
`Gregory G. Garre
`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
`
`David R. Marriott
`Christine A. Varney
`Antony L. Ryan
`Sharonmoyee Goswami
`Michael J. Zaken
`Jesse M. Weiss
`Benjamin A. Atlas
`CRAVATH, SWAINE & MOORE LLP
`825 Eighth Avenue
`Worldwide Plaza
`New York, NY 10019
`Telephone: (212) 474-1000
`
`June 5, 2023
`
`
`
`
`
`
`
`No. 23-60167
`
`IN THE
`United States Court of Appeals
`FOR THE FIFTH CIRCUIT
`
`
`ILLUMINA, INC. AND GRAIL, INC.,
`
`v.
`
`FEDERAL TRADE COMMISSION,
`
`
`
`PETITION FOR REVIEW OF
`AN ORDER OF THE FEDERAL TRADE COMMISSION
`
`Petitioners,
`
`Respondent.
`
`PETITIONERS’ MOTION TO FILE DECISIONS BELOW UNDER SEAL
`
`SUBMITTED BY:
`
`
`
`Gregory G. Garre
`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
`
`David R. Marriott
`Christine A. Varney
`Antony L. Ryan
`Sharonmoyee Goswami
`Michael J. Zaken
`Jesse M. Weiss
`Benjamin A. Atlas
`CRAVATH, SWAINE & MOORE LLP
`825 Eighth Avenue
`Worldwide Plaza
`New York, NY 10019
`Telephone: (212) 474-1000
`
`June 5, 2023
`
`
`
`
`
`Case: 23-60167 Document: 98 Page: 2 Date Filed: 06/05/2023
`
`
`
`CERTIFICATE OF INTERESTED PERSONS
`
`Illumina, Inc. v. Federal Trade Commission, No. 23-60167
`
`The undersigned counsel of record certifies that the following listed persons
`
`and entities as described in the fourth sentence of 5th CIR. Rule 28.2.1 have an
`
`interest in the outcome of this case. These representations are made in order that the
`
`judges of this Court may evaluate possible disqualification or recusal.
`
`Counsel for Respondent:
`Matthew M. Hoffman
`FEDERAL TRADE COMMISSION
`600 Pennsylvania Ave., NW
`Washington, D.C. 20580
`Telephone: (202) 326-3097
`mhoffman@ftc.gov
`
`
`Counsel for Petitioners:
`David R. Marriott
`Christine A. Varney
`Antony L. Ryan
`Sharonmoyee Goswami
`Michael J. Zaken
`Jesse M. Weiss
`Benjamin A. Atlas
`CRAVATH, SWAINE & MOORE LLP
`825 Eighth Avenue
`Worldwide Plaza
`New York, NY 10019
`Telephone: (212) 474-1000
`Facsimile: (212) 474-3700
`
`
`Respondent:
`Federal Trade Commission
`
`
`Petitioners:
`Illumina, Inc.
`
`
`
`
`
`
`
`Case: 23-60167 Document: 98 Page: 3 Date Filed: 06/05/2023
`
`
`
`GRAIL, LLC
`
`Other Interested Parties:
`Illumina, Inc. has outstanding securities
`in the hands of the public, but no parent
`companies, subsidiaries, affiliates, or
`public companies own at least 10% of
`Illumina, Inc.’s stock.
`
`
`
`
`Gregory G. Garre
`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
`
`
`
`
`ii
`
`
`
`Case: 23-60167 Document: 98 Page: 4 Date Filed: 06/05/2023
`
`
`
`
`
`
`
`/s/ David R. Marriott
`David R. Marriott
`Christine A. Varney
`Antony L. Ryan
`Sharonmoyee Goswami
`Michael J. Zaken
`Jesse M. Weiss
`Benjamin A. Atlas
`CRAVATH, SWAINE & MOORE LLP
`825 Eighth Avenue
`New York, NY 10019
`(212) 474-1000
`Attorneys for Petitioner Illumina, Inc.
`
`/s/ Gregory G. Garre
`Gregory G. Garre
`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
`(202) 637-2200
`
`Alfred C. Pfeiffer
`LATHAM & WATKINS LLP
`505 Montgomery Street
`Suite 2000
`San Francisco, CA 94111-6538
`(415) 391-0600
`Attorneys for Petitioner GRAIL, LLC
`
`
`
`iii
`
`
`
`Case: 23-60167 Document: 98 Page: 5 Date Filed: 06/05/2023
`
`
`
`The above-captioned case is a petition for review from the Federal Trade
`
`Commission’s decision in In re Illumina, Inc. and GRAIL, Inc., No. 9401. The
`
`Commission’s decision, as well as the Initial Decision issued by Chief
`
`Administrative Law Judge Chappell, contain narrowly tailored redactions that
`
`protect competitively sensitive and proprietary information. Pursuant to this Court’s
`
`Rule 25.2.8, Petitioners Illumina, Inc. (“Illumina”) and GRAIL, Inc. (now known as
`
`GRAIL, LLC) (“Grail”, and with Illumina, “Petitioners”) move for permission to
`
`file unredacted copies of those opinions under seal and redacted copies on the public
`
`docket. Petitioners have conferred with the FTC, and the FTC does not object to
`
`Petitioners’ request.
`
`BACKGROUND
`
`In March 2021, the FTC issued an administrative complaint seeking to block
`
`Illumina’s re-acquisition of Grail. An extensive discovery period followed, before
`
`the ALJ commenced an exhaustive five-week trial beginning in August 2021. The
`
`ALJ heard from 66 witnesses and received more than 4,500 exhibits into evidence.
`
`Prior to and during the hearing, Petitioners moved for in camera treatment of
`
`certain exhibits that the parties planned to enter into evidence. See Illumina Aug. 30,
`
`2021 In Camera Motion, No. 9401, Doc. No. 602450; Grail Aug. 30, 2021 In
`
`Camera Motion, No. 9401, Doc. No. 602452; Illumina Sept. 8, 2021 In Camera
`
`Motion, No. 9401, Doc. No. 602528; Grail Sept. 9, 2021 In Camera Motion,
`
`
`
`
`
`Case: 23-60167 Document: 98 Page: 6 Date Filed: 06/05/2023
`
`
`
`No. 9401, Doc. No. 602542. Petitioners each explained that the listed documents
`
`contained competitively sensitive information, including information about:
`
`(1) financial and sales projections; (2) pricing strategy; (3) deliberations regarding
`
`potential mergers, acquisitions, or investments or other strategic initiatives;
`
`(4) research and development efforts; (5) regulatory strategy; and (6) third-party
`
`customer data regarding supply and licensing agreements. Id. Illumina and Grail
`
`each filed a declarations from members of their respective legal departments, who
`
`explained why it was necessary to keep the documents at issue confidential. Id.
`
`Judge Chappell granted Petitioners’ respective motions. He found that both
`
`Illumina and Grail “met [their respective] burden of demonstrating that the
`
`documents in these categories are sufficiently secret and sufficiently material to
`
`[their respective] business[es] that disclosure would result in serious competitive
`
`injury.” See Order on Illumina’s In Camera Motion at 2, No. 9401 (F.T.C. Sept. 3,
`
`2021), Doc. No. 602507; Order on Grail’s In Camera Motion at 2, No. 9401 (F.T.C.
`
`Sept. 3, 2021), Doc. No. 602509. Judge Chappell then discussed each category of
`
`documents at issue, found that the documents in each merited confidential treatment,
`
`and set deadlines upon which each category of documents would become public.
`
`Doc. No. 602507 at 2; Doc. No. 602509 at 2-3; see also Order on Illumina’s In
`
`Camera Motion, No. 9401 (F.T.C. Aug. 12, 2021), Doc. No. 602276 (describing
`
`confidentiality standard).
`
`2
`
`
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`Case: 23-60167 Document: 98 Page: 7 Date Filed: 06/05/2023
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`
`
`After the confidentiality issues were resolved, Judge Chappell issued a
`
`detailed Initial Decision ruling in Petitioners’ favor. Consistent with his
`
`confidentiality decision, Judge Chappell redacted portions of the Initial Decision that
`
`referred to confidential information. See Initial Decision, No. 9401 (F.T.C. Sept. 22,
`
`2022). The FTC appealed, and the Commission reversed, entering judgment for the
`
`FTC. See Commission Decision, No. 9401 (F.T.C. April 3, 2023). The Commission
`
`also redacted the portions of its opinion that referred to confidential information. Id.
`
`ARGUMENT
`
`Judge Chappell and the Commission properly redacted their decisions in order
`
`to protect Petitioners’ sensitive information.1 This Court should uphold their
`
`decisions and allow Petitioners to file the unredacted versions of both opinions under
`
`seal, along with redacted copies on the public docket. Such an order would be
`
`consistent with this Court’s treatment of ALJ and Commission decisions in prior
`
`
`1 The Initial Decision and Commission Decision also redacted third-party
`confidential information for which Judge Chappell granted in camera treatment.
`Order on Non-Parties’ Motions for In Camera Treatment, No. 9401 (F.T.C. Aug.
`19, 2021), Doc. No. 602370. For purposes of this motion, Petitioners take no
`position as to whether such information was properly sealed, but move to file that
`information under seal pursuant to Petitioners’ obligations under Commission
`Rules. See id. at 12 (“All of the documents for which in camera treatment has
`been granted shall also be treated as confidential under the Protective Order”);
`Appendix A to 16 C.F.R. § 3.31: Standard Protective Order ¶ 7 (restricting
`disclosure of confidential information).
`
`3
`
`
`
`Case: 23-60167 Document: 98 Page: 8 Date Filed: 06/05/2023
`
`
`
`appeals of FTC decisions. See Order, Impax Lab’ys, Inc. v. FTC, No. 19-60394 (5th
`
`Cir. Oct. 8, 2019), Doc. 25.
`
`Because “[t]he decision whether to allow public access to court records is one
`
`best left to the sound discretion of the trial court,” this Court reviews those decisions
`
`“for abuse of discretion.” Vantage Health Plan v. Willis-Knighton Med. Ctr., 913
`
`F.3d 443, 450 (5th Cir. 2019) (citations omitted). There is a “presumption in favor
`
`of the public’s common law right of access to court records.” Id. (citations omitted).
`
`But a “party’s interest in having [those records] sealed” can “outweigh[] the public’s
`
`interest in open access,” particularly when the records at issue “are sources of
`
`business information that might harm a litigant’s competitive standing.” Dish
`
`Network, LLC v. WLAJ-TV, LLC, No. CV 16-0869, 2017 WL 1333057, at *2 (W.D.
`
`La. Apr. 3, 2017) (citations omitted); see also N. Cypress Med. Ctr. Op. Co. v. Cigna
`
`Healthcare, 781 F.3d 182, 204 (5th Cir. 2015) (“[S]ealing may be appropriate where
`
`orders incorporate confidential business information.” (citing Nixon v. Warner
`
`Commc’ns, Inc., 435 U.S. 589, 598 (1978)). Accordingly, Courts in the Fifth Circuit
`
`routinely “seal[] documents to prevent the disclosure of confidential business
`
`information.” Dish, 2017 WL 133057, at *2 (collecting cases); see also Conn Credit
`
`I, LP v. TF LoanCo III, LLC, 2016 WL 8231153, at *1 (E.D. Tex. May 9, 2016)
`
`(sealing business information).
`
`4
`
`
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`Case: 23-60167 Document: 98 Page: 9 Date Filed: 06/05/2023
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`
`
`Judge Chappell “appl[ied] the proper legal standard” and gave “sufficient
`
`reasons” for deciding to grant Petitioners’ requests to have a limited set of
`
`information treated as confidential. Vantage Health, 913 F.3d at 451. Relying on
`
`extensive FTC case law, he explained that Petitioners had to show “that the public
`
`disclosure of the documentary evidence will result in a clearly defined, serious
`
`injury.” E.g., Order on Illumina’s In Camera Motion, No. 9401 (F.T.C. Aug. 12,
`
`2021), Doc. No. 602276. He then applied that standard to each category of
`
`documents for which Petitioners sought confidential treatment, finding that
`
`Petitioners had met their respective burdens to demonstrate a basis for keeping each
`
`piece of evidence under seal. See Order on Illumina’s In Camera Motion at 2,
`
`No. 9401 (F.T.C. Sept. 3, 2021), Doc. No. 602507; Order on Grail’s In Camera
`
`Motion at 2, No. 9401 (F.T.C. Sept. 3, 2021), Doc. No. 602509; Order on Non-
`
`Parties’ Motions for In Camera Treatment, No. 9401 (F.T.C. Aug. 19, 2021), Doc.
`
`No. 602370. To balance the public’s right of access, he put specific time limits on
`
`each confidentiality designation. Id. The redactions in both Judge Chappell’s
`
`opinion and the FTC’s opinion reflect those reasoned decisions.
`
`Redacting the opinions below was the right call. As Petitioners explained to
`
`Judge Chappell, the categories of documents for which Petitioners sought
`
`confidential treatment contain information that Petitioners keep secret to avoid
`
`significant
`
`competitive harm.
`
` Specifically, Petitioners protect
`
`their
`
`5
`
`
`
`Case: 23-60167 Document: 98 Page: 10 Date Filed: 06/05/2023
`
`
`
`respective (1) financial and sales projections; (2) pricing strategies; (3) deliberations
`
`regarding potential mergers, acquisitions, or investments or other strategic
`
`initiatives; (4) research and development efforts; and (5) regulatory strategy in order
`
`to prevent competitive harm. See Illumina Aug. 30, 2021 In Camera Motion,
`
`No. 9401, Doc. No. 602450; Grail Aug. 30, 2021 In Camera Motion, No. 9401, Doc.
`
`No. 602452; Illumina Sept. 8, 2021 In Camera Motion, No. 9401, Doc. No. 602528;
`
`Grail Sept. 9, 2021 In Camera Motion, No. 9401, Doc. No. 602542. Petitioners also
`
`have an obligation to keep third-party customer data regarding supply and licensing
`
`agreements confidential. Id. On these facts, Judge Chappell was correct to find that
`
`the documents at issue warranted confidential treatment. The redactions to both his
`
`opinion and the Commission’s opinion were a natural extension of that decision.
`
`CONCLUSION
`
`This Court should grant Petitioners permission to file unredacted copies of the
`
`decisions below under seal and the redacted copies on the public docket.
`
`6
`
`
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`Case: 23-60167 Document: 98 Page: 11 Date Filed: 06/05/2023
`
`
`
`Dated: June 5, 2023
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`/s/ David R. Marriott
`David R. Marriott
`Christine A. Varney
`Antony L. Ryan
`Sharonmoyee Goswami
`Michael J. Zaken
`Jesse M. Weiss
`Benjamin A. Atlas
`CRAVATH, SWAINE & MOORE LLP
`Worldwide Plaza
`825 Eighth Avenue
`New York, NY 10019
`Telephone: (212) 474-1000
`
`Counsel for Petitioner Illumina, Inc.
`
`7
`
`
`
`Case: 23-60167 Document: 98 Page: 12 Date Filed: 06/05/2023
`
`
`
`/s/ Gregory G. Garre
`Gregory G. Garre
`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
`
`Counsel for Petitioner GRAIL, LLC
`
`
`
`
`
`
`
`8
`
`
`
`Case: 23-60167 Document: 98 Page: 13 Date Filed: 06/05/2023
`
`
`
`CERTIFICATE OF CONFERENCE
`
`Pursuant to Fifth Circuit Rule 27.4, I certify that on June 4, 2023, counsel
`
`for Illumina contacted counsel for Appellee Federal Trade Commission.
`
`Mr. Hoffman responded that Respondents consented to the motion.
`
`Dated: June 5, 2023
`
`
`
`
`
`
`
`/s/ David R. Marriott
`David R. Marriott
`
`
`
`Counsel for Petitioner Illumina, Inc.
`
`9
`
`
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`Case: 23-60167 Document: 98 Page: 14 Date Filed: 06/05/2023
`
`
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`CERTIFICATE OF SERVICE
`
`This is to certify that the foregoing instrument has been served via the Court’s
`
`ECF filing system in compliance with Rule 25(b) and (c) of the Federal Rules of
`
`Appellate Procedure, on June 5, 2023, on all registered counsel of record, and has
`
`been transmitted to the Clerk of the Court.
`
`/s/ David R. Marriott
`David R. Marriott
`
`
`
`Counsel for Petitioner Illumina, Inc.
`
`
`
`
`
`10
`
`
`
`Case: 23-60167 Document: 98 Page: 15 Date Filed: 06/05/2023
`
`
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`CERTIFICATE OF COMPLIANCE
`
`1.
`
`This document complies with the type-volume limit of Federal Rule of
`
`Appellate Procedure 32(a)(7)(B) because, excluding the parts of the document
`
`exempted by Federal Rule of Appellate Procedure and Fifth Circuit Rule 32.1:
`
`this document contains 1,330 out of the allotted 5,200 words.
`
`2.
`
`This document complies with the typeface requirements of Federal
`
`Rule of Appellate Procedure 32(a)(5), and Fifth Circuit Rule 32.1 and the type-style
`
`requirements of Federal Rule of Appellate Procedure 32(a)(6) because:
`
`this document has been prepared in a proportionally spaced typeface using
`Microsoft 365 MSO (Version 2208) with Times New Roman font, regular
`typeface and font size 14.
`
`/s/ David R. Marriott
`David R. Marriott
`
`
`
`Counsel for Petitioner Illumina, Inc.
`
`11
`
`
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