Why a Class Action Lawsuit Against 23andMe? Quick Hit Q&A With Audet & Partners

by JD Supra Perspectives
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We maintain on behalf of the class that the company is actually concealing its true purpose for selling the kits, which is to aggregate, and then commercially appropriate, genetic information collected from its customers...

The bad news for 23andMe keeps coming. In late November, we learned that the U.S. Food and Drug Administration had ordered the company to stop selling its $99 DNA testing kit owing to a number of accuracy and validity concerns in the test results. Weeks later, news broke that the beleaguered company had become the subject of a class action lawsuit. We checked in with attorneys at Audet & Partners, one of the firms bringing the lawsuit against 23andMe. Here's our quick hit Q&A on the class action:

Q: Why a class action against 23andMe?

A: This class action alleges claims for false advertising and misrepresentations made by 23andMe, Inc. to consumers related to the company's DNA Saliva Collection Kit/Personal Genome Service. We allege that 23andMe made representations regarding the product's purported ability to reveal certain underlying health information with no cognizable scientific evidence to substantiate such claims.

Additionally, we seek damages on behalf of the proposed class for the 23andMe’s practice of allegedly aggregating information collected from individuals submitting saliva samples through the Saliva Kit and then improperly and/or illegally marketing or selling this information to the scientific community.

On November 22, 2013, the company received a warning letter from the FDA raising a litany of concerns regarding the potential for false positives and negatives for serious health conditions that could arise from their Saliva Kit. As set forth in the complaint, this FDA warning echoed similar concerns articulated by others, including a Harvard neurology professor who, in a 2008 Senate hearing, deemed tests such as the 23andMe Saliva Kit to be “both medically and commercially irresponsible.”

Q: Tell us what you can at this point about 23andMe's practice of marketing/selling information collected through the kits?

A: Our complaint contends that 23andMe, Inc. is really pushing the envelope in its potential misappropriation of customer consent buried in the Terms of Service which accompany sale of the Saliva Kits. Within these terms is language whereby the customer signs away any rights to compensation for commercial products developed with the genetic information revealed to the company through its Saliva Kit. We maintain on behalf of the class that the company is actually concealing its true purpose for selling the kits, which is to aggregate, and then commercially appropriate, genetic information collected from its customers.

Q: What relief is being sought on behalf of the proposed class?

A: First, we are seeking an injunction prohibiting 23andMe, Inc. from advancing further claims for its Saliva Kits which the company cannot scientifically substantiate per FDA-mandated protocols. Second, on behalf of the class we are asking that 23andMe be ordered to make restitution to all consumers who have purchased the Saliva Kit. Finally, we will assert claims for punitive damages on behalf of the class.

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Read updates and commentary from Audet & Partners here>>

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