An August 3 article in Bloomberg BNA's 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 Pitney's 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
court's 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.
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