Federal Trade Commission v. Illumina, Inc. ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FEDERAL TRADE COMMISSION, :
:
Plaintiff, : Civil Action No.: 21-873 (RC)
:
v. : Re Document No.: 41
:
ILLUMINA, INC., et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION TO TRANSFER VENUE
I. INTRODUCTION
Two biotechnology firms agreed that one would acquire the other. The federal
government then filed suit to stop the merger, arguing that the deal would stifle innovation and
harm consumers. But before any court can decide whether the merger can go forward, this Court
must determine where the litigation should take place. Between this district and a district that
would be easier for the most witnesses to get to, the latter is more appropriate.
II. BACKGROUND
Illumina, Inc. is a market leader in genetic sequencing products. Redacted Compl. ¶¶ 5–
6, ECF No. 14. Its sequencing platforms are a key component in multi-cancer early detection
tests, which promise to revolutionize cancer treatment. Id. ¶¶ 2, 6. These tests will allow
healthcare providers to screen for a wide variety of cancers and detect cancer early on in a
tumor’s development. Id. ¶¶ 2–3. Several biotechnology firms are racing to develop the
technology and bring it to market. Id. ¶ 4.
In 2015, Illumina formed GRAIL, Inc. to compete in that race. Id. ¶ 7. Two years later,
however, Illumina reduced its share in GRAIL to below 20%. Id. ¶ 8. It currently owns just
14.5% of GRAIL’s voting shares, with well-known investors like Jeff Bezos, Bill Gates, and
Johnson & Johnson owning the rest. Id. GRAIL has now developed a multi-cancer early
detection test called “Galleri.” Id. ¶¶ 4, 9. It plans to seek approval to commercialize Galleri
from the U.S. Food and Drug Administration (“FDA”). Id. ¶ 9. Last year, Illumina and GRAIL
(collectively, “Defendants”) entered into a merger agreement whereby Illumina would acquire
the remaining 85.5% of GRAIL’s shares it does not already own. Id. ¶ 26.
Concerned that the merger would have serious anticompetitive effects on the U.S. multi-
cancer early detection test market, see id. ¶¶ 1, 11–14, the Federal Trade Commission decided to
conduct an administrative adjudication to determine if the deal would violate federal antitrust
laws, id. ¶ 27. That adjudication is scheduled to begin in the District of Columbia on August 24,
2021. See id.; Pl.’s Mem. Opp’n Defs.’ Mot. Transfer Venue (“Pl.’s Opp’n”) at 11, ECF No. 55.
To prevent Defendants from executing the merger while the adjudication is pending, the
Commission filed this action. See Pl.’s Mot. TRO, ECF No. 4. The parties have stipulated to a
temporary restraining order that prevents the merger until the earliest of (1) September 20, 2021;
(2) the end of the second business day after a court rules on the Commission’s motion for a
preliminary injunction; or (3) the Commission’s dismissal of the action. TRO at 2, ECF No. 8.
The dispute at issue now is which court should decide the Commission’s preliminary
injunction motion. Defendants ask that the case be transferred to the Southern District of
California. See Mem. P & A Supp. Defs.’ Mot. Transfer Venue (“Defs.’ Mot.”), ECF No. 41-1.
Both companies are headquartered in California—Illumina in the Southern District, Schwillinksi
Decl. ¶ 4, ECF No. 41-3, and GRAIL in the Northern District, Song Decl. ¶ 3, ECF No. 41-2.
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California was also the site of the merger negotiations. Schwillinksi Decl. ¶ 5; Song Decl. ¶ 6.
And Defendants say that, if an in-person hearing on the motion is possible, more witnesses
would have an easier time getting to the Southern District than this one. Defs.’ Mot. at 1–2. The
Commission opposes transfer. See Pl.’s Opp’n. It stresses that its choice of forum deserves
considerable deference. Id. at 1. And it disputes Defendants’ claim that the Southern District
would be more convenient. Id. at 2. Ultimately, Defendants have the better argument.
III. LEGAL STANDARD
Even when venue is already proper, “[f]or the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought.” 28 U.S.C. § 1404(a). Assessing a transfer request requires
an “individualized, case-by-case consideration of convenience and fairness.” Van Dusen v.
Barrack, 376 U.S. 612, 622 (1964). The party who asks for a transfer bears the burden of
showing it is warranted. Chauhan v. Napolitano, 746 F. Supp. 2d 99, 102 (D.D.C. 2010). First,
the movant must demonstrate that venue would be proper in the proposed transferee district.
Wolfram Alpha LLC v. Cuccinelli, 490 F. Supp. 3d 324, 330 (D.D.C. 2020). Second, the movant
must show that the balance of private and public interests weighs in favor of transfer. Id.IV. ANALYSIS
The Commission does not disagree that venue would be proper in the Southern District of
California. Nor could it, seeing as Illumina is headquartered there and GRAIL is headquartered
elsewhere in California. See 28 U.S.C. § 1391(b)(1) (stating that venue is proper in “a judicial
district in which any defendant resides, if all defendants are residents of the State in which the
district is located”); see also 15 U.S.C. § 53(b) (permitting the Commission to bring suit, inter
3
alia, wherever venue is proper under section 1391). As a result, this dispute centers on whether
private and public interests warrant transfer.
Almost all those factors are neutral or favor transfer. But the one factor weighing in
favor of keeping the case is ordinarily entitled to a great deal of deference. Although the
question is a close call, the Court agrees with Defendants that transfer is appropriate.
A. The Effect of the COVID-19 Pandemic
Before delving into an assessment of the private and public interest factors, the Court
addresses how the ongoing COVID-19 pandemic affects its analysis. For over a year, courts
across the country—including this one and the District Court for the Southern District of
California—have held limited in-person hearings to slow the spread of the COVID-19 virus.
See, e.g., Standing Order 20-9 (D.D.C. Mar. 16, 2020); Standing Order 18-A (S.D. Cal. Mar. 23,
2020). In the meantime, courts have mostly resorted to holding hearings over the telephone and
videoconferencing software. But the proliferation of vaccines raises the possibility of returning
to regular in-person proceedings soon. See COVID-19 Vaccinations in the United States, Ctr. for
Disease Control & Prevention, https://covid.cdc.gov/covid-data-tracker/#vaccinations (showing
that, as of April 18, 2021, 25.4% of the U.S. population was fully vaccinated).
The parties spar over how the possibility of an in-person preliminary injunction hearing
impacts the appropriateness of transfer. Defendants want the hearing—which they say “will
function as a trial on the merits”—to be in person. Defs.’ Mot. at 1. And if the hearing is in
person, they say, then it would be much easier for witnesses and parties who largely reside in
California and the Western United States to travel to the Southern District than it would be for
them to travel to the District of Columbia. Id. at 1, 7. Defendants assert that the risk of
contracting COVID-19 may dissuade West Coast witnesses’ attendance at a hearing on the other
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side of the country, and they point out that local D.C. travel restrictions (such as testing and
isolation requirements) would raise logistical hurdles. See id. at 7–8; see also, e.g., D.C. Health,
Coronavirus 2019 (COVID-19): Guidance for Travel (Mar. 3, 2021), https://coronavirus.dc.gov/
sites/default/files/dc/sites/coronavirus/page_content/attachments/Travel_Guidance_DCHealth_C
OVID-19_Updated%203.3.21.pdf. According to Defendants, relocating the case to the Southern
District would minimize these burdens.
The Commission responds that an in-person proceeding is unnecessary, so none of
Defendants’ claimed burdens should hold weight. See Pl.’s Opp’n at 6–8. It points to cases
where other district courts found that videoconference platforms permitted adequate assessment
of remote witnesses’ credibility. Id. at 6 (citing Flores v. Town of Islip, No. 18-cv-3549, 2020
WL 5211052, at *2 (E.D.N.Y. Sept. 1, 2020); Raffel Sys., LLC v. Man Wah Holdings Ltd., Inc.,
No. 18-cv-1765, 2020 WL 8771481, at *3 (E.D. Wis. Nov. 13, 2020)). Given the effectiveness
of remote proceedings, the Commission argues, there is no point in risking participants’ health
with an in-person hearing—especially in light of concerns that a fourth surge in COVID-19 cases
may be coming or that variants of the virus may stall recent progress. See Pl.’s Opp’n at 7–8. 1 If
the hearing will be remote anyway, the Commission concludes, then transferring the case would
do little for the convenience of the parties or witnesses. See id. at 7.
Yet significantly, “[l]ive testimony is . . . markedly preferable” to remote testimony.
Beall v. Edwards Lifesciences LLC, 310 F. Supp. 3d 97, 106 (D.D.C. 2018) (quoting Pyrocap
Int’l Corp. v. Ford Motor Co., 259 F. Supp. 2d 92, 98 (D.D.C. 2003)); see also United States v.
1
See also Reis Thebault, Are We Entering a ‘Fourth Wave’ of the Pandemic? Experts
Disagree., Wash. Post (Apr. 4, 2021), https://www.washingtonpost.com/health/2021/04/04/
covid-fourth-wave/; Apoorva Mandavilli & Benjamin Mueller, Virus Variants Threaten to Draw
Out the Pandemic, Scientists Say, N.Y. Times (Apr. 5, 2021), https://www.nytimes.com/2021/
04/03/health/coronavirus-variants-vaccines.html.
5
Lattimore, No. 20-cv-123, 2021 WL 860234, at *7 (D.D.C. Mar. 8, 2021) (“The Court would
greatly prefer to hold all pre-trial hearings in person. . . . Unfortunately, the COVID-19 pandemic
simply prevents the Court from holding in-person hearings safely at this time.”). The utility of
live proceedings is not limited to aiding in the evaluation of witness credibility—though that is
one important benefit, see Beall, 310 F. Supp. 3d at 106; Pyrocap, 259 F. Supp. 2d at 98.
Among other advantages, live proceedings permit more natural dialogue among hearing
participants, allow participants to handle any physical evidence, and avoid the technical
difficulties that can sometimes trip up virtual proceedings. The Court will therefore seek to
maximize the chances that the preliminary injunction hearing can occur in person or, in the event
of a hybrid proceeding, that as many people as possible can safely provide live testimony.
Due to the continued rollout of vaccines, an in-person or hybrid proceeding may be
possible by July or August, which is when the parties anticipate the hearing taking place. See
Sheryl Gay Stolberg, Biden Moves Up Vaccine Eligibility Deadline for All Adults to April 19,
N.Y. Times (Apr. 6, 2021), https://www.nytimes.com/2021/04/06/us/politics/biden-vaccine-all-
adults-eligible.html. But between the spread of virus variants, the possibility of another surge,
and regional differences in vaccination rates, there is no way to predict whether a live hearing is
more likely in one district versus the other. As a result, the relative likelihood of an in-person
hearing between the two districts will not factor into the Court’s analysis.
Nevertheless, the Court will assume in its assessment that the hearing will occur, at least
in part, in person. Cf. Montgomery v. Barr, No. 20-cv-03214, 2020 WL 6939808, at *9 (D.D.C.
Nov. 25, 2020) (“[T]his factor, as well as some others geared towards convenience, seems less
relevant today because of the frequency of telephone and video conferences due to the COVID-
19 pandemic. Even so, the Court must apply the legal framework, which envisions in-person
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hearings and trials, as it exists. To do otherwise would eviscerate the idea that local courts
should hear local matters.” (citation omitted)). If that assumption turns out to be wrong, then—
as the Commission points out—it matters little for convenience’s sake which court hears the
case. Either way, witnesses, lawyers, and the parties will be able to join the videoconference
proceedings from the safety of their homes and offices. But if the hearing will be in person, then
pandemic-related risks and restrictions could significantly impact participants’ ability and
willingness to attend. It is safer to plan for an in-person hearing so that, in case one does occur,
as many participants as possible can safely appear.
B. The Private Interest Factors Support Transfer
When weighing a motion to transfer, a court takes into account the following private
interest considerations: (1) the plaintiff’s choice of forum; (2) the defendant’s preferred forum;
(3) the location where the claim arose; (4) the convenience of the parties; (5) the convenience of
the witnesses; and (6) ease of access to sources of proof. Vasser v. McDonald, 72 F. Supp. 3d
269, 282 (D.D.C. 2014). Only one private interest factor—the plaintiff’s choice of forum—
favors this Court retaining the case. The remaining factors range from having a neutral effect on
the venue analysis to strongly favoring transfer. Those factors win out.
Because the last four factors help assess the weight the first two are entitled to, the Court
begins with them. For starters, the location where the claim arose benefits Defendants. A claim
originates “in the location where the corporate decisions underlying those claims were made or
where most of the significant events giving rise to the claims occurred.” Beall, 310 F. Supp. 3d
at 104 (citation omitted). Defendants emphasize that their officers negotiated the acquisition
agreement in California. Song Decl. ¶ 6; Schwillinski Decl. ¶ 5. Although they do not specify
that the negotiations took place in the Southern District, they are adamant that the negotiations
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did not touch the District of Columbia at all. Song Decl. ¶ 6; Schwillinksi Decl. ¶ 5. At a
minimum, then, the location where the claim arose is a neutral factor. Cf. United States v.
Energy Sols., Inc., No. 16-cv-1056, 2016 WL 7387069, at *4 (D. Del. Dec. 21, 2016) (explaining
that the factor was “largely neutral” when the record was unclear and did not “definitively
indicate” that merger negotiations took place in the proposed transferee district). But even if the
negotiations occurred, say, in the Northern District of California, that district is much closer to
the Southern District than this one. So to the extent that the factor is “a proxy for where the
witnesses, parties, and evidence are likely to be located,” United States v. H & R Block, Inc., 789
F. Supp. 2d 74, 80 (D.D.C. 2011), the Southern District would likely provide a more convenient
forum for this dispute than one across the country. Cf. FTC v. Graco Inc., No. 11-cv-2239, 2012
WL 3584683, at *5 (D.D.C. Jan. 26, 2012) (determining that the factor favored transfer when the
merger agreement “was negotiated, drafted, and executed” in the proposed transferee district).
Indeed, the Court’s analysis of the other factors bears that hypothesis out.
The convenience-of-the-parties factor is neutral. For a “burden suffered by a party from
litigating in a particular forum to weigh in favor of transfer, litigating in the transferee district
must not merely shift inconvenience to the non-moving party; instead, it should lead to increased
convenience overall.” Mazzarino v. Prudential Ins. Co. of Am., 955 F. Supp. 2d 24, 31 (D.D.C.
2013). Defendants’ potential benefit from transfer is obvious. Illumina is headquartered in the
Southern District. See Schwillinski Decl. ¶ 4; see also Virts v. Prudential Life Ins. Co. of Am.,
950 F. Supp. 2d 101, 107 (D.D.C. 2013) (explaining that a company’s headquarters in a district
made that forum a more convenient one). And GRAIL is headquartered in the Northern District
of California, which is much closer to the Southern District than the District of Columbia. See
Song Decl. ¶ 3. But because transfer would take the case away from where the Commission is
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headquartered, it would merely shift inconvenience to the Commission. As a result, the factor
favors neither party. See Graco, 2012 WL 3584683, at *6 (finding that convenience of the
parties did “not weigh in favor of either party” because “Minnesota is more convenient for the
defendants and the District of Columbia is more convenient for the FTC”). 2
Weighing heavily toward transfer is the convenience of witnesses. This factor is the most
important one. Beall, 310 F. Supp. 3d at 105 (“The most critical factor to examine under 28
U.S.C. § 1404(a) is the convenience of the witnesses.” (citation omitted)). Significantly, the
inquiry is “not whether certain witnesses may be located outside the chosen forum, but instead
whether those witnesses would be unwilling to testify in the District of Columbia.” FTC v.
Cephalon, Inc., 551 F. Supp. 2d 21, 28 (D.D.C. 2008) (internal quotation marks and citation
omitted). And because parties can typically compel their employees to appear regardless of the
forum, the convenience of nonparty witnesses matters more than the convenience of party
witnesses. See H & R Block, 789 F. Supp. 2d at 82; see also Cephalon, 551 F. Supp. 2d at 28(“The employee witnesses located at Cephalon’s headquarters are under the control of Cephalon
and could most likely be compelled to testify here.”).
Defendants’ argument on this factor is strong. By their count, eleven of the nineteen
third-party witnesses that the Commission has deposed or examined via investigational hearings
“appear to be based in California.” Mot. Hr’g Tr. at 13:14–15. And of the fourteen Illumina and
GRAIL employees the Commission examined, thirteen live in California. Id. at 13:11–12. In
addition, Defendants’ competitors—which, both parties agree, will supply some witnesses—are
2
The Commission mentions that the Southern District would require more lawyers to
travel. See, e.g., Pl.’s Opp’n at 7–8. But “[t]he location of counsel ‘carries little, if any, weight
in an analysis under § 1404(a).’” Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 52 n.7 (D.D.C.
2000) (citation omitted).
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largely based in California and the Western United States. Of the competitors the Commission
lists in its sealed complaint, more are headquartered in California than any other state or the East
Coast as a whole, others have offices in California, and another has offices in nearby Arizona.
See Sealed Compl. ¶ 46, ECF No. 3; see also Pl’s. Opp’n at 18; Mot. Hr’g Tr. at 26:4–6
(Commission attorney stating that “potential witnesses” live in California, Arizona, Maryland,
Massachusetts, and the District of Columbia). The Commission points out that the third-party
witnesses’ geographic distribution remains to be seen because the parties have not yet identified
them for the hearing. Pl.’s Opp’n at 18. It also suggests that, while some potential witnesses’
employers are in California, the witnesses live elsewhere. Mot. Hr’g Tr. at 25:23–25.
Ultimately, however, the Commission does not offer any hard figures to dispute the general point
that likely witnesses would have an easier time getting to the Southern District than this district.
Travel that would ordinarily pose a mere inconvenience may well, under the current
circumstances, deter witnesses from attending proceedings in the case. “[T]he pandemic has
highlighted that there can be risks associated with travel,” so “[s]ome people who would not
have been worried about travel before the pandemic are now reluctant to travel.” Express
Mobile, Inc. v. Web.com Grp., Inc., No. 19-cv-1936, 2020 WL 3971776, at *4 (D. Del. July 14,
2020). Furthermore, witnesses may be less willing to attend proceedings if it means elongating
their stay to account for local COVID-19 travel protocols such as testing and quarantining.
Given that more potential witnesses appear to be located in or near California than
anywhere else, transferring proceedings in the Southern District would minimize the burdens and
risks of travel for the greatest number of witnesses. Cf. id. at *3 (finding that the convenience of
the witnesses “favor[ed] transfer” in part because “the bulk of non-expert witnesses are more
likely to reside in the Middle District of Florida than anywhere else”). Even if many of the
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witnesses live in other districts in the Western United States, holding proceedings in the
Southern District would still reduce the need for potentially hazardous long-haul airplane trips.
See Safer Travel Ideas, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/
coronavirus/2019-ncov/travelers/travel-risk.html (warning travelers to avoid long flights with
layovers). Indeed, “[c]ourts have consistently transferred actions when the majority of witnesses
live near the transferee forum.” Beall, 310 F. Supp. 3d at 105 (alteration in original) (emphasis
added) (quoting Mathis v. Geo Grp., Inc., 535 F. Supp. 2d 83, 87 (D.D.C. 2008)). In sum, the
critical convenience-of-the-witnesses factor strongly favors transfer.
The Southern District also provides easier access to some sources of proof, though the
factor carries limited weight. Between housing Illumina’s headquarters and its relatively close
proximity to GRAIL’s headquarters in the Bay Area, the Southern District has a geographic
advantage over this district when it comes to obtaining corporate records about the merger. That
said, modern technology permitting the instantaneous transfer of those kinds of records nearly
eliminates that advantage. See H & R Block, 789 F. Supp. 2d at 83. But see Beall, 310 F. Supp.
3d at 106 (“While the records may be in electronic form, this factor weighs nonetheless in favor
of transfer because ‘all of the . . . documents’ are located in the transferee forum.” (citation
omitted)). More important is the Southern District’s proximity to physical exhibits such as
company equipment and products, which Defendants remarked in oral argument would help a
court decide the case. See Mot. Hr’g Tr. at 20:3–9. Because Defendants failed to raise that
argument in their brief, see Defs.’ Mot. at 11, the Court is hesitant to put too much stock in it, see
Walker v. Pharm. Rsch. & Mfrs. of Am., 461 F. Supp. 2d 52, 58 n.9 (D.D.C. 2006) (explaining
that a party forfeits an argument not raised in its opening brief). Nevertheless, the Southern
District appears marginally better poised to access relevant evidence than this Court.
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What remains to be considered are the parties’ preferences. Usually, a plaintiff’s choice
of forum is “a ‘paramount consideration’ that is entitled to ‘great deference’ in the transfer
inquiry.” Cephalon, 551 F. Supp. 2d at 26 (quoting Thayer/Patricof Educ. Funding, L.L.C. v.
Pryor Res., Inc., 196 F. Supp. 2d 21, 31 (D.D.C. 2002)). Indeed, “some courts have found that
the government’s choice of venue in an antitrust case is ‘entitled to heightened respect.’” Id.(quoting United States v. Brown Univ., 772 F. Supp. 241, 242 (E.D. Pa. 1991)); see also United
States v. Microsemi Corp., No. 08-cv-1311, 2009 WL 577491, at *7 (E.D. Va. Mar. 4, 2009)
(“Where venue is proper, a plaintiffs [sic] choice of forum is entitled to substantial weight,
particularly where the plaintiff’s choice of forum is authorized by the more liberal antitrust venue
provision.”). But the deference owed to a plaintiff diminishes if “there is an insubstantial factual
nexus between the case and the plaintiff’s chosen forum.” Fed. Hous. Fin. Agency v. First Tenn.
Bank Nat. Ass’n, 856 F. Supp. 2d 186, 192 (D.D.C. 2012) (quoting New Hope Power Co. v. U.S.
Army Corps of Eng’rs, 724 F. Supp. 2d 90, 95 (D.D.C. 2010)). And “when the weight of the
plaintiff’s choice is comparatively weak,” the defendant’s choice deserves greater consideration.
Mazzarino, 955 F. Supp. 2d at 31 (quoting Virts, 950 F. Supp. 2d at 106).
This case has little connection to the District of Columbia. After all, it originated out of a
merger that two California-based companies negotiated in California. Cf. Cephalon, Inc., 551 F.
Supp. 2d at 26 (“None of the negotiations that led to the settlement agreements at the heart of
this controversy took place in, or were in any other way related to, the District.”); cf. also
Bergmann v. U.S. Dep’t of Transp., 710 F. Supp. 2d 65, 72 (D.D.C. 2010) (“Plaintiff’s choice of
forum is also entitled to less deference where, as here, the majority of operative facts took place
outside the District of Columbia.”). The Commission nevertheless insists that this case is tied to
the District in several ways. It first asserts that the merger will cause nationwide harm that will
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affect consumers in the District of Columbia. Pl.’s Opp’n at 10. It then infers that, because
Defendants claim in their answer that the merger will help GRAIL obtain FDA approval for
Galleri, that GRAIL’s small, D.C.-based government-relations office will play a “notably
outsized role . . . in a review of this merger.” Id. at 10–11; see also, e.g., Redacted Answer at 12,
ECF No. 49. And finally, it says that the parallel administrative adjudication pending in the
District of Columbia warrants keeping the cases in the same locale. Pl.’s Opp’n at 11.
Each of those attempts to demonstrate a meaningful connection to this forum falls flat.
While D.C. residents may feel the anticompetitive effects of the merger, the nationwide impact
makes this forum no different than any other. Cf. FTC v. Acquinity Interactive, LLC, No. 13-cv-
5380, 2014 WL 37808, at *2 (N.D. Ill. Jan. 6, 2014) (concluding that the Commission’s choice
of forum was entitled to “less weight” than usual because “the only real connection between the
lawsuit and this district is that some of the alleged consumer injury occurred here,” but that
“d[id] not differentiate this district from any other district in the country”); cf. also Graco, 2012
WL 3584683, at *5 (similar); Cephalon, 551 F. Supp. 2d at 27–28 (similar). Likewise, GRAIL’s
D.C. office is not as relevant as the Commission claims it is. The office has fewer than ten
employees, Song Decl. ¶ 5, and it is focused on lobbying rather than securing regulatory
approvals (which is handled out of the company’s California headquarters), Mot. Hr’g Tr. at
7:14–22. Cf. Cephalon, 551 F. Supp. 2d at 26 (finding that a corporation’s “very small public
affairs office in the District of Columbia” did not create a meaningful connection to the District).
The yet-to-begin administrative adjudication does not help the Commission either. Its claim that
the proceeding connects this case to the District was unsupported by any legal authority. See
Pl.’s Opp’n at 11; cf. Graco, 2012 WL 3584683, at *5 (“The FTC argues that because this case is
[a] preliminary injunction proceeding in aid of an administrative proceeding currently pending in
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the District of Columbia, this case, in a procedural sense, arises out of that administrative action.
There is, however, no legal support provided for the plaintiff’s proposition.”). And “this Court
has long recognized that mere involvement on the part of federal agencies, or some federal
officials who are located in Washington, D.C. is not determinative of whether the plaintiffs’
choice of forum in the District of Columbia receives deference.” First Tenn. Bank, 856 F. Supp.
2d at 192 (cleaned up) (quoting New Hope Power, 724 F. Supp. 2d at 95–96).
To the extent the Commission suggests that the FDA approval process ties this case to
this district because the agency is headquartered nearby in Maryland, it is wrong. See Mot. Hr’g
Tr. at 27:18 to 28:1. Of course, one of the many reasons Defendants agreed to the merger is that
they believe it will allow Illumina to help secure FDA approval for GRAIL’s Galleri product.
See Redacted Answer at 12. But a federal agency’s general oversight of an industry does not
link its home forum to every controversy that somehow relates to its regulatory processes. See
Bergmann, 710 F. Supp. 2d at 73 (“While plaintiff argues that his claims ‘arose principally at the
headquarters offices of the Defendants in Washington, D.C.,’ defendants persuasively counter
that ‘the only real connection [the] lawsuit has to the District of Columbia is that a federal
agency headquartered here . . . is charged with generally regulating and overseeing the
[administrative] process.’” (alterations and omissions in original) (citations omitted)). The FDA
has not taken any specific action toward Defendants. Its regulatory regime was merely part of
the backdrop that motivated the deal.
The H & R Block case that the Commission relies on dealt with an agency that played a
much more direct role in prompting the challenged merger. There, the government alleged that a
do-it-yourself tax preparation company negotiated the acquisition of a competitor to stop it from
disrupting the industry. See 789 F. Supp. 2d at 77. One of the competitor’s prominent moves
14
involved a public-private partnership between tax preparation companies and the D.C.-based
Internal Revenue Service that let qualified taxpayers prepare and file their taxes for free. Id.The competitor introduced an offer through the partnership that was free to all U.S. taxpayers,
forcing major players in the industry to follow suit. Id. The industry then lobbied for restricting
the type and number of taxpayers that could receive the partnership’s free services, which the
IRS eventually did. Id. Because “facts underlying the complaint took place” in the District and
IRS employees would likely be witnesses, the government asserted that its choice of forum was
entitled to deference. Id. at 79. The court agreed. Id. at 79–80. But the factors that drove that
decision are not present here. In H & R Block, the IRS had a direct hand in the events that led to
the challenged transaction. It partnered with tax preparation companies and, in response to
lobbying, reduced industry participants’ ability to compete through that partnership. By contrast,
the FDA’s sole involvement in this case is that GRAIL will one day ask it to approve Galleri for
sale. The agency plays just the passive, background role of industry regulator. Indeed, it is
telling that no party has indicated that FDA employees will serve as witnesses. The FDA’s
approval process thus does not connect the case with this forum.
Having determined that this case lacks a meaningful connection to the District other than
the fact that the Commission is located here, the Court will not defer to the Commission’s choice
of forum. See First Tenn. Bank, 856 F. Supp. 2d at 192. That means the Defendants’ choice
deserves greater weight. See Mazzarino, 955 F. Supp. 2d at 31. And because the only contrary
factor is diminished, the private interest factors collectively weigh toward transfer.
C. The Public Interest Factors Are Essentially Neutral
There are three public interest factors that courts typically consider when deciding a
motion to transfer: (1) whether there is a local interest in making a local decision about a local
15
controversy; (2) the proposed transferee court’s familiarity with the applicable law; and (3) the
relative congestion of the transferor and transferee courts. H & R Block, 789 F. Supp. 2d at 83.
Because these factors are basically neutral with only the local interest factor possibly favoring
transfer, the Court will keep its discussion brief.
First, if there is any local interest in this lawsuit, it would support transferring the case to
the Southern District. The Court has already explained how the case’s origins in California favor
transfer. Cf. Graco, 2012 WL 3584683, at *6 (finding that the local interest factor favored
transfer because the challenged transaction was negotiated in the proposed district and one of the
defendants was headquartered there). In addition, Illumina is headquartered in the Southern
District, and a decision blocking or permitting the merger could affect the company’s employees
who live there. Cf. Bader v. Air Line Pilots Ass’n, Int’l, 63 F. Supp. 3d 29, 36 (D.D.C. 2014)
(noting that there was “some local interest” in the proposed transferee district because a related
organization was headquartered there and the case “could have some impact on its employees”);
That said, no district has a peculiarly local interest in hosting a suit that alleges nationwide
anticompetitive effects. See H & R Block, 789 F. Supp. 2d at 83 (“The local interest in making
decisions regarding local controversies is a neutral factor here because, as defendants concede,
this case has national economic significance and does not present an essentially local matter.”);
Cephalon, 551 F. Supp. 2d at 31 (explaining that the public interest factor had “little application”
because the “use of reverse-payment settlements” was “not a local issue at all” but instead “a
question that has nationwide significance”). Consequently, this factor gives little reason to
transfer the case beyond those already discussed—if any.
Second, because “all federal courts are presumed to be equally familiar with the law
governing federal statutory claims,” neither district court enjoys an expertise-based advantage
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over the other. See Mazzarino, 955 F. Supp. 2d at 32 (quoting Intrepid Potash–N.M., LLC v.
U.S. Dep’t of Interior, 669 F. Supp. 2d 88, 98 (D.D.C. 2009)). This factor is therefore neutral.
Third, caseload statistics do not indicate that one forum would be able to dispose of the
case more efficiently than the other. While district judges in the Southern District have more
cases (503 cases per judge) than those in the District of Columbia (373 cases per judge), the
median time between the filing of a civil case and the case’s disposition is nearly equal across
the two districts (6.0 months in the Southern District versus 5.8 months in the District of
Columbia). Admin. Off. of U.S. Courts, United States District Courts—National Judicial
Caseload Profile 2, 69 (Sept. 30, 2020), https://www.uscourts.gov/sites/default/files/data_tables/
fcms_na_distprofile0930.2020.pdf. None of the parties try to tell a different story from those
statistics. See Defs.’ Mot. at 11–12; Pl.’s Opp’n at 21. Instead, the Commission suggests that, if
the case is transferred, there could be delays as the new court gets up to speed. Pl.’s Opp’n at 21.
But seeing no evidence that the Southern District courts are more backlogged than courts in this
district, the Court doubts that any delay will be material. Moreover, accepting the Commission’s
argument would give the initial court an automatic advantage in any transfer dispute. As
Defendants point out, a transferee court will always have to play catch-up when it receives a new
case. Mot. Hr’g Tr. at 18:17–22. This factor is neutral too.
* * *
In the final calculation, only one factor favors this Court retaining the case: the
Commission’s choice of forum. But because the case lacks a meaningful connection to the
District of Columbia, that ordinarily important factor carries little weight. The remaining factors
are either neutral or support transfer. Most significantly, transferring the case to the Southern
District of California would be much more convenient for the bulk of the witnesses. That
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already substantial factor holds even greater force during the ongoing COVID-19 pandemic. The
Court will therefore transfer the case.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Transfer (ECF No. 41) is GRANTED.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: April 20, 2021 RUDOLPH CONTRERAS
United States District Judge
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