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.