In a decision that may give genetic testing companies reason to breathe a sigh of relief, the U.S. Court of Appeals for the Ninth Circuit affirmed on August 21 the denial of a class certification bid by consumers suing under Alaska’s Genetic Privacy Act (the Act). In Cole v. Gene by Gene, Ltd., Plaintiff sought to represent a class of individuals alleging that Gene by Gene, Ltd. (Gene by Gene) violated Alaska Stat. Ann. § 18.13.010(a)(1) by disclosing customer DNA results and information without informed, written consent. According to the Ninth Circuit, the U.S. District Court for the District of Alaska did not abuse its discretion in finding that Plaintiff failed to show that common questions predominated over any questions affecting only individual members of the proposed classes, and that a class action was not superior to other methods of resolution. Thus, Plaintiff could not satisfy Fed. R. Civ. P. 23(b), and the litigation was not suitable for class treatment.

Plaintiff brought suit alleging that when consumers return DNA testing kits provided by Gene by Gene, the company not only permits consumers to view the results of its analysis, but also publishes the results of the DNA testing on publicly available websites – unbeknown to consumers. According to Plaintiff, this disclosure without consumer permission “carries serious and irreversibly privacy risks” and violates the Act. In his class certification motion, Plaintiff emphasized issues he claimed were common to all class members, such as whether consent was provided and whether the disclosure of information was for profit. Additionally, Plaintiff pointed out that the process for genetic information collection was the same, and the same types of genetic information were disclosed for each consumer.

However, the Ninth Circuit found, as the district court had, that “[i]ndividualized determinations predominate with respect to disclosure, consent, and damages for [Plaintiff’s] putative class of approximately 900 Alaskans and Gene by Gene customers, as well as for his proposed subclass.” The Ninth Circuit pointed out that the terms of release a consumer signed varied by, inter alia, the different Gene by Gene platforms the consumer joined and the privacy settings the consumer chose. Further, whether a consumer had actually consented to disclosure varied by the terms of release for those platforms and any “privacy communications they may have had with Gene by Gene.” Finally, the Ninth Circuit found that potential variances in individual damages weighed against commonality.

The Ninth Circuit also found that Plaintiff failed to carry his burden to show that a class action was superior to other available methods for fairly and efficiently adjudicating the controversy. The court reasoned that, among other things, the “difficulties inherent in managing a class action featuring such distinct and individualized issues, the limited resources to be saved by certifying a class, and the absence of other pending or duplicative lawsuits” indicated that individual litigation was a superior mechanism for resolving the litigation.

The Act is one of 24 state information privacy rights laws that, to varying degrees, require informed consent prior to the disclosure of genetic information. Providing for a private right of action and $5,000 per violation or, if the violation resulted in profit or monetary gain to the violator, $100,000 per violation, the Act is among the strictest currently in force. However, the ruling in Gene by Gene demonstrates that consumers wishing to vindicate those rights may have to be willing to pursue those claims alone. The Ninth Circuit’s ruling illustrates that, while claims may appear very similar from one vantage point, a court may frame them differently for purposes of evaluating commonality under Rule 23. Whether this dampens enthusiasm for pursuing privacy rights remedies remains to be seen. But if additional courts find class actions untenable, companies utilizing genetic information may have one fewer worry.