An August 3 article in Bloomberg BNAs Privacy Law Watch, “DNA Testing Company Shakes Alaska Privacy Claims,” discussed the decision by an Alaska federal court in Cole v. Gene by Gene Ltd. to reject the attempt by a group of customers to sue a genetic testing kit company in a class action. Day Pitneys Eric Fader was quoted in the article.
The court ruled that because the customers had signed different consent forms and participated in different online forums, their claims that the company publicly disclosed their private genetic information without consent were not similar enough to one another to be brought as a group. Eric told Bloomberg BNA that the courts decision to deny class certification was a happy accident for Gene by Gene, but that continually revising consent forms is not a viable strategy for companies hoping to preclude a potential class action.
“Even if the absence of a commonality of interests prevents certification of a single large class,” Eric said, “the aggrieved individuals could sue individually or as part of smaller classes.” In addition, a company that violates individuals privacy will likely be subject to regulatory action.