Cole v. Gene by Gene, Ltd.
Filing
175
ORDER: re Motion to Dismiss 95 (see order for full details). Signed by Judge Sharon L. Gleason on 06/30/2017. (AEM, CHAMBERS STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MICHAEL COLE, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
GENE BY GENE, LTD., a Texas
Limited Liability Company d/b/a
FAMILY TREE DNA,
Case No. 1:14-cv-00004-SLG
Defendant.
ORDER RE MOTION TO DISMISS
Before the Court at Docket 95 is Defendant Gene by Gene’s Motion to Dismiss
Pursuant to Rule 12(b)(1) and 12(h)(3). Plaintiff Michael Cole opposed the motion at
Docket 104, to which Gene by Gene replied at Docket 114. Oral argument was held on
December 2, 2016.
BACKGROUND
The relevant facts for this motion are as follows: In 2013, Michael Cole purchased
a DNA testing kit from www.familytreedna.com, a website operated by Gene by Gene. 1
Testing kits include a cheek swab used to collect DNA samples and an optional release
form to authorize the sharing of the customer’s name and email address with his or her
genetic matches. 2 After swabbing their cheek, customers return the testing kits to Family
Tree DNA for testing and storage. When testing is complete, Family Tree emails its
1
2
Docket 1 (Compl.) at 9, ¶ 27.
Docket 1 at 7, ¶ 20. Gene by Gene does business as Family Tree DNA. The Court uses the
names interchangeably.
customers a web link where they may view their results, locate genetic matches, and
research their ancestral origins. 3 Each customer is also given the option of joining
projects. A project is an online forum run by an unpaid third-party volunteer; they are
often operated through independent websites. 4 When a customer joins certain projects,
Mr. Cole alleges that Family Tree DNA automatically publishes the full results of the
customer’s DNA test to Family Tree DNA’s publicly available websites. 5 Mr. Cole signed
up for nine projects and understood that the project administrators would have access to
his name, contact information, and testing kit number. 6 But Mr. Cole alleges that when
he signed up for the projects, he was not informed that some project administrators had
separate websites; nor was he informed that his full DNA test results would be disclosed
on those sites.
3
Docket 1 at 7, ¶ 21.
4
Docket 1 at 7, ¶ 22.
5
Docket 1, at 8, ¶ 25. See Docket 105-1 (Cole Dep.) at 14 (“Well, my DNA test result was posted
on Rootsweb, which is Ancestry.com.”); see also Docket 106-2 at 10–11; Docket 106-4 at 8;
Docket 106-5 at 2 (“[Family Tree DNA is] currently feeding results data directly to WorldFamilies,
where it is then displayed publicly.”). Gene by Gene vigorously disputes this claim. It maintains
Mr. Cole’s genetic information was not posted on any website. Docket 95 at 4 (citing Docket 961 at 11). Gene by Gene contends that it only lists repetition sequences of certain portions of “junk
DNA” on its website. According to Gene by Gene, “junk DNA,” or non-functional DNA, consists
of non-exon segments of DNA. Genetic conditions are established by exons and therefore cannot
be gleaned from non-functional DNA. Docket 95 at 6–7; Docket 110 (Greenspan Decl.) at 2 ¶ 3.
The Court need not resolve this dispute at this time because (as explained below) Mr. Cole has
adequately demonstrated specific facts plausibly satisfying Article III standing requirements. See
Barnum Timber Co. v. EPA, 633 F.3d 894, 899 (9th Cir. 2011); see also Matera v. Google Inc.,
No. 15-cv-04062-LHK, 2016 WL 5339806 *6 (N.D. Cal. Sept. 23, 2016).
6
Docket 106-4 (Blankfeld Dep.) at 7.
Case No. 1:14-cv-00004-SLG, Cole v. Gene by Gene
Order re Motion to Dismiss
Page 2 of 9
Months later, after receiving excessive junk email, Mr. Cole searched the Internet
for his email address and found it on a website called “Rootsweb.”7 He alleges that he
then learned his DNA test results had been publicly disclosed. Mr. Cole initiated this
action against Gene by Gene, alleging that its sharing of his DNA test results violated
Alaska’s Genetic Privacy Act. 8
Mr. Cole brings this action on behalf of himself and a proposed class that includes
all residents of Alaska who had their DNA results disclosed by Gene by Gene without
written consent. 9 Mr. Cole seeks the following relief from this Court: (1) an order certifying
the class; (2) a declaration that Gene by Gene’s conduct violates Alaska’s Genetic
Privacy Act; 10 (3) an award of “actual and statutory damages” of $5,000, or, if the Court
finds that Gene by Gene’s alleged violation resulted in profit or monetary gain,
$100,000; 11 and (4) an injunction requiring Gene by Gene to cease disclosing its
customers’ DNA testing results. 12
7
Docket 96-2 (Cloud Dep.) at 8.
8
See Docket 1 (citing AS 18.13.010 et seq.).
9
Docket 1 at 10 (describing the putative class as “All citizens or residents of Alaska who had their
DNA results disclosed, publically or to any third party, by Family Tree after joining one of its
projects, for which Family Tree did not have a record of written consent to disclose the same”);
see also Docket 138 (Mot. to Cert. Class).
10
AS 18.13.010 et seq.
The reference to actual damages in the Complaint’s Prayer for Relief is somewhat ambiguous.
See Docket 1 at 15. See also Docket 1 at ¶48 (Mr. Cole asserts that he suffered damgages in an
amount equal to the difference between the price he paid to Gene by Gene and the price he would
have been willing to pay had he known that his full DNA test results would be disclosed.) But in
subsequent responses to discovery and in his filings on this motion, it appears clear that Mr. Cole
is seeking solely to recover the statutory penalty under Alaska’s Genetic Privacy Act.
11
12
Docket 1 (Compl.) at 15.
Case No. 1:14-cv-00004-SLG, Cole v. Gene by Gene
Order re Motion to Dismiss
Page 3 of 9
DISCUSSION
I. Statutory Jurisdiction
Mr. Cole and Gene by Gene are residents of different states and the amount in
controversy exceeds the requisite $75,000. Therefore, this Court has jurisdiction pursuant
to 28 U.S.C. § 1332. Under diversity jurisdiction, the Court applies federal procedural law
and Alaska substantive law.
II. Motion to Dismiss
Gene by Gene has moved to dismiss this action pursuant to Federal Rule of Civil
Procedure 12(b)(1). Specifically, Gene by Gene maintains that since Mr. Cole is seeking
only statutory damages under the Genetic Privacy Act, he has not demonstrated the
requisite injury-in-fact for Article III standing. Lack of Article III standing requires dismissal
for want of subject matter jurisdiction under Rule 12(b)(1). 13
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.”14 In a facial attack,
the challenger asserts that the allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger
disputes the truth of the allegations that, by themselves, would otherwise invoke federal
jurisdiction. Gene by Gene’s jurisdictional attack is factual because it relies on evidence
13
See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011).
14
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227
F.3d 1214, 1242 (9th Cir. 2000)).
Case No. 1:14-cv-00004-SLG, Cole v. Gene by Gene
Order re Motion to Dismiss
Page 4 of 9
beyond the pleadings to refute Mr. Cole’s contention that he has the requisite injury-infact sufficient to confer standing. 15
When a defendant has moved to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1), the plaintiff bears the burden of establishing the Court's jurisdiction. 16
The plaintiff carries that burden by putting forth “the manner and degree of evidence
required” by whatever stage of the litigation the case has reached. 17 At the motion to
dismiss stage, a plaintiff must allege specific facts that demonstrate the standing
requirements are met. 18 In determining whether the plaintiff has met his burden, “the
court may expand its review and ‘rely on affidavits or any other evidence properly before
the court.’” 19
To establish standing to sue, a plaintiff “must demonstrate three elements which
constitute the ‘irreducible constitutional minimum’ of Article III standing.” 20 First, a plaintiff
“must have suffered an ‘injury-in-fact’ to a legally protected interest that is both ‘concrete
and particularized’ and ‘actual or imminent, as opposed to conjectural or hypothetical.’”
15
Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003) (finding jurisdictional
challenge a factual attack when it “relied on extrinsic evidence and did not assert lack of subject
matter jurisdiction solely on the basis of the pleadings”).
16
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing FW/PBS, Inc. v. Dallas, 493 U.S.
215, 231 (1990)).
17
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
18
Barnum Timber Co. v. EPA, 633 F.3d 894, 899 (9th Cir. 2011); see also Matera v. Google Inc.,
No. 15-cv-04062-LHK, 2016 WL 5339806 *6 (N.D. Cal. Sept. 23, 2016).
19
Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir. 2007) (quoting St. Clair v. City of Chico,
880 F.2d 199, 201 (9th Cir. 1989)).
20
San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (quoting Lujan,
555 U.S. at 560).
Case No. 1:14-cv-00004-SLG, Cole v. Gene by Gene
Order re Motion to Dismiss
Page 5 of 9
Second, “there must be a causal connection between [the plaintiff’s] injury and the
conduct complained of.” Third, “it must be ‘likely’—not merely ‘speculative’—that [the]
injury will be ‘redressed by a favorable decision.’” 21 In the class action context, “standing
is satisfied if at least one named plaintiff meets the[se] [three] requirements.”22 Gene by
Gene focuses on the first requirement for Article III standing, asserting that Mr. Cole lacks
standing because he has no evidence of any actual injury. 23
Mr. Cole’s asserted injury is based exclusively on alleged violations of Alaska’s
Genetic Privacy Act. 24 AS 18.13.010(a) of the Act provides as follows:
(1) a person may not collect a DNA sample from a person, perform a DNA
analysis on a sample, retain a DNA sample or the results of a DNA analysis,
or disclose the results of a DNA analysis unless the person has first
obtained the informed and written consent of the person, or the person's
legal guardian or authorized representative, for the collection, analysis,
retention, or disclosure;
(2) a DNA sample and the results of a DNA analysis performed on the
sample are the exclusive property of the person sampled or analyzed.
The Act also creates a private right of action:
A person may bring a civil action against a person who collects a DNA
sample from the person, performs a DNA analysis on a sample, retains a
DNA sample or the results of a DNA analysis, or discloses the results of a
DNA analysis in violation of this chapter. In addition to the actual damages
suffered by the person, a person violating this chapter shall be liable to the
21
Id. (quoting Lujan, 555 U.S. at 560–61).
22
Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc) (citing Lujan,
504 U.S. at 560-61).
23
See Docket 96-1 at 15–16 (Cole Depo.) (“Q: Do you have any evidence that you have suffered
any negative insurance consequences as a result of disclosure? A: No. Q: Do you have any
evidence that you have suffered any negative healthcare consequences as a result of the
disclosure? A: No. Q: Do you have any evidence that you have sustained any negative
educational consequences as a result of the disclosure? A: No.”).
24
See, e.g., Docket 96-1 (Cole Dep.) at 14, 16.
Case No. 1:14-cv-00004-SLG, Cole v. Gene by Gene
Order re Motion to Dismiss
Page 6 of 9
person for damages in the amount of $5,000 or, if the violation resulted in
profit or monetary gain to the violator, $100,000. 25
At issue is whether the alleged violation of this statute is sufficient to confer Article
III standing.
A legislature may elevate injuries that were “previously inadequate in law”
to “the status of legally cognizable injuries.” But not every harm recognized by statute will
be sufficiently “concrete” for standing purposes. 26
When evaluating whether a statutory violation constitutes an injury-in-fact, Spokeo
instructs courts to consider two factors: (1) whether the alleged intangible harm caused
by the statutory violation bears a “close relationship to a harm that has traditionally been
regarded as providing a basis for a lawsuit in English or American courts,” and (2)
congressional judgment in establishing the statutory right. 27
Mr. Cole’s alleged harm satisfies Spokeo’s first factor. Alaska’s Genetic Privacy
Act recognizes an exclusive property interest in one’s DNA, and prohibits the
unauthorized disclosure of DNA information. These statutory entitlements bear a close
relationship to the common law torts of conversion of property and invasion of privacy,
which have each historically provided a basis for a lawsuit in American courts. 28 The
Ninth Circuit has stated that “constitutionally protected privacy interest” may be violated
by “disclosure of personal matters.” 29
Likewise, Alaska Supreme Court decisions
25
AS 18.13.020.
26
Spokeo, 136 S. Ct. at 1549 (citing Lujan, 504 U.S. at 578).
27
Matera, 2016 WL 5339806, at *9 (citing Spokeo, 136 S. Ct. at 1549).
28
See Restatement (First) of Torts § 232 (1934); Restatement (Second) of Torts § 652A.
29
Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998).
Case No. 1:14-cv-00004-SLG, Cole v. Gene by Gene
Order re Motion to Dismiss
Page 7 of 9
demonstrate that “the right of privacy embodied in the Alaska Constitution is implicated
by the disclosure of personal information about oneself.”30
Accordingly, Mr. Cole’s
alleged injury is closely related to torts that have been recognized in both federal and
Alaska state courts.
As to the second factor, congressional judgment, three considerations favor finding
that the statute grants persons in the plaintiff’s position a right to judicial relief: (1) the
provision of a private right of action; (2) the availability of statutory damages; and (3) the
substantive nature of the statutory right. 31 Each of those considerations weigh in favor of
Article III standing here. First, Alaska’s Genetic Privacy Act explicitly grants a private right
of action to those aggrieved by a violation of the act. Second, the Genetic Privacy Act
expressly provides for the recovery of statutory damages in addition to any actual
damages suffered. Third, the Act creates a property interest in one’s DNA and the results
of any DNA analysis. 32 By creating such an interest, the Alaska legislature did more than
mandate specific procedural requirements; it created a substantive right. 33 Accordingly,
30
Doe v. Alaska Super. Ct., Third Jud. Dist., 721 P.2d 617, 629 (Alaska 1986) (emphasis in
original).
31
See Matera, 2016 WL 5339806, at *12. Regarding this third consideration, in Spokeo, the
Supreme Court observed that while “the violation of a procedural right granted by statute can be
sufficient in some circumstances to constitute injury in fact,” a “bare procedural violation, divorced
from any concrete harm” is not. Spokeo, 136 S. Ct. at 1549.
32
AS 18.13.010 (“[A] DNA sample or the results of a DNA analysis performed on the sample are
the exclusive property of the person sampled or analyzed.” (emphasis added)).
33
See, e.g., Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (“The
TCPA establishes the substantive right to be free from certain types of phone calls and texts
absent consumer consent.”); Syed v. M-I, LLC, 853 F.3d 492, 499 (9th Cir. 2017) (finding a
concrete injury when employer willfully procured applicant’s credit report using illegal disclosure
and authorization form).
Case No. 1:14-cv-00004-SLG, Cole v. Gene by Gene
Order re Motion to Dismiss
Page 8 of 9
the unauthorized disclosure of an individual’s DNA is not hypothetical or uncertain; it
constitutes a concrete harm that satisfies the injury-in-fact requirement under Article III. 34
For the reasons stated above, the Court concludes that although Mr. Cole’s alleged
injury—the dissemination of his DNA test results without his consent—may not have
resulted in tangible economic or physical harm, the injury is sufficiently “concrete” so as
to confer Article III standing. 35 Accordingly, Mr. Cole has standing to bring this action,
and the Court hereby DENIES Gene by Gene’s motion to dismiss at Docket 95.
DATED this 30th day of June, 2017.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
34
The Complaint also adequately alleges this injury was caused by Gene by Gene’s conduct and
could be remedied by an award of statutory damages, thus establishing the remaining two
standing requirements.
35
Mr. Cole also argues that he suffered a tangible injury to his property rights. See Docket 104
at 12. However, the Court need not decide whether Mr. Cole’s alleged injury was tangible or
intangible; it is sufficient that the asserted injury constitutes a concrete injury under Article III.
Case No. 1:14-cv-00004-SLG, Cole v. Gene by Gene
Order re Motion to Dismiss
Page 9 of 9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?