Tompkins v.

23ANDME, INC. 2014 WL 2903752 (2014)

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Nature of the Case

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Facts

D is a personal genetics company that offers to provide customers hereditary information from a genetic sample. D has a Personal Genome Service (PGS) that consists of a DNA saliva collection kit and DNA test results with certain genetic information derived from a customer's saliva sample. A customer purchases a DNA kit online at D's website for $99. D ships the DNA kit to the customer with a pre-addressed return box and instructions on how to return a saliva sample. D then receives the saliva sample and has the DNA tested at a certified laboratory. D posts the customer's DNA information online to the customer's personal genome profile. The customer receives an e-mail notification when DNA results are ready to view. The results have a health component and the ancestry component. The health component informs customers about how their genetics impact their health by providing data on health risks, inherited conditions, drug responses, and genetic traits. The ancestry component offers a variety of features such as tracing ancestry and identifying relatives, including a DNA comparison to other D users. On November 22, 2013, the FDA sent a 'Warning Letter' to D that D was violating the Food, Drug and Cosmetic Act by selling PGS without marketing clearance or approval. The FDA required D to discontinue marketing PGS until it got clearance and approval for the product. he FDA allowed D to continue to provide new customers with the ancestry component of PGS in addition to raw genetic data. D now provides full refunds to anyone who purchased a DNA kit between November 22, 2013, and December 5, 2013. When customers buy and obtain PGS, they perform two steps on D's website. First, a customer must order and pay for a DNA kit. The ordering webpage has no requirement that customers view the TOS or click to accept the TOS. Customers can enter their payment information and purchase DNA kits online without seeing the TOS. Section 28b of this Miscellaneous section of the TOS is an arbitration provision. At all relevant times, the TOS have been accessible via hyperlink at the bottom of D's homepage under the heading 'LEGAL.' The only opportunity for a full refund is a 60-minute cancellation window after purchase. Customers can receive partial refunds within 30 days of purchase, provided they have not already sent their saliva to the laboratory. Customers have 12 months from the date of purchase to use the DNA kit. In order to send in a DNA sample to the laboratory and receive genetic information, customers must both create accounts and register their DNA kits online. The account creation page requires customers to check a box next to the line, 'Yes, I have read and agree to the Terms of Service and Privacy Statement.' The TOS and Privacy Statement appear in blue font and are hyperlinks to the full terms. During the registration process, customers must view a page with the title 'To continue, accept our terms of service' written in large font at the top of the page. The registration page provides a hyperlink to the full TOS next to the line: 'When you sign up for 23andMe's service you agree to our Terms of Service. Click here to read our full Terms of Service.' Customers must then click a large blue icon that reads 'I ACCEPT THE TERMS OF SERVICE' before finishing the registration process and receiving their DNA information. Ps filed class action complaints against D alleging false advertising, unfair competition, and consumer protection. D moved to compel arbitration.