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Cole v. Gene by Gene, Ltd.

United States District Court for the District of Alaska · 2017 · Civil Procedure

Civil ProcedureClass CertificationRule 23(b)(3)class actionpredominancesuperiorityindividualized proofconsent

Facts

Gene by Gene sold at-home DNA testing kits and allowed customers to join Family Tree DNA projects run by volunteer administrators. Cole alleged that when customers joined projects, their identifying information and DNA test results were shared with project administrators and, in some instances, posted on publicly available project websites without consent. Cole sought to certify a class of Alaska residents who purchased a test, executed a release form, and joined a project during the class period, plus a subclass for those who joined projects administered or co-administered by Terry Barton or WorldFamilies.net. The record showed variation in release forms, project administrators, privacy settings, and the extent to which customer information may have been disclosed.

Issue

Whether the proposed class and subclass satisfied Rule 23(b)(3) for certification in an action under Alaska’s Genetic Privacy Act. Specifically, the court considered whether common questions predominated over individualized ones and whether a class action was superior to individual suits.

Rule

Under Rule 23(b)(3), a proposed class may be certified only if common questions of law or fact predominate over questions requiring individualized proof and a class action is superior to other available methods of adjudication. Predominance requires the court to identify the issues in the case and determine which are subject to generalized proof and which require individualized proof; individualized damages alone do not defeat certification, but plaintiffs must show damages are capable of measurement on a classwide basis.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

North Cascades Biolabs, a private genetics company in Seattle, sells ancestry kits to Washington customers. Every customer during the class period signed the same release form, every customer’s account operated under the same non-adjustable privacy setting, and whenever a customer joined a surname group, the same categories of data were automatically transmitted to the group moderator.

If a named plaintiff seeks certification of a damages class under Rule 23(b)(3) based on alleged unlawful disclosure of genetic information, which is the strongest argument that predominance is satisfied?

Explanation. Predominance requires the court to identify which issues are subject to generalized proof and which require individualized proof. Where the same release form governed all class members and the same automatic disclosure occurred for all of them, the core liability elements are more cohesive and thus more likely to predominate. The case makes clear that predominance is more demanding than mere commonality, but it does not require proof of the merits at certification.