Coatney v. Ancestry.com DNA

1

ALEX COATNEY, H.S. and B.H., by and through their Guardian DONNA HILAND, and N.S., by and through her Guardian JENNIFER PALLONE, individually and on behalf of similarly situated individuals, Plaintiffs, v. ANCESTRY.COM DNA, LLC, Defendant.

No. 21-cv-1368-DWD

United States District Court, S.D. Illinois

September 30, 2022

MEMORANDUM AND ORDER

DUGAN DISTRICT JUDGE:

Plaintiffs Alex Coatney, and H.S., B.H., and N.S., by and through their guardians, individually and on behalf of other similarly situated individuals, bring this putative class action against Defendant Ancestry.com DNA, LLC (“Ancestry”), alleging violations of the Illinois Genetic Information Privacy Act, 410 Ill. Comp. Stat. Ann 513/1, et seq. (“GIPA”). Plaintiffs contend that Ancestry violated their privacy rights by disclosing confidential genetic information to unauthorized third parties without their written consent (Doc. 19, ¶ 1, 21-22, 25-27).

Now before the Court is Defendant's Motion to Compel Arbitration (Doc. 21).^[1]Plaintiffs filed a Response in Opposition (Doc. 27) to which Defendant replied (Doc. 28).

The Court held a hearing on the Motion on May 3, 2022, and Plaintiffs filed a supplement on June 30, 2022 (Doc. 33). Having considered the briefing and arguments of the parties and as further detailed below, the Motion will be denied.

Background

Ancestry is a genetic testing services company that sells genealogy tools and DNA testing kits to customers around the world (Doc. 19, ¶¶ 16-19). Plaintiffs' DNA tests were registered, submitted, and processed by Ancestry while they were minors. Plaintiffs do not have registered accounts with Ancestry, however, each of their Guardians, Coatney, Roberts and Pallone (the “Guardians”), used their registered Ancestry accounts to submit Plaintiffs' DNA tests to Ancestry. To register their accounts, the Guardians provided their names and email addresses, created passwords and accepted Ancestry's Terms and Conditions that were in effect at the time of their registration (Doc. 21-1).^[2]

Ancestry updated its Terms and Conditions no less than ten (10) times from the time of Guardian Pallone's registration in 2006 until the filing of Plaintiffs' initial complaint.^[3] Each of those versions of the Terms and Conditions contained a provision allowing Ancestry to unilaterally modify the Terms and Conditions at any point and provide notice to users via email or a banner on their website. Continued use of Ancestry's product or services after being notified of a change in the Terms would constitute acceptance of the updated Terms. The parties do not argue that any of the Guardians disaffirmed Ancestry's Terms or have deleted their accounts. Thus, it is undisputed that the most recent Terms and Conditions, the 2019 Terms (Doc. 21-12), apply to the relationship between Ancestry and the Guardians.

However, the parties dispute whether the 2019 Terms, or any version of the Terms and Conditions, apply to Plaintiffs. Plaintiffs maintain that no version of the Terms and Conditions can apply to them. Whereas Defendant appears to argue that the 2019 Terms, or some other version of the Terms and Conditions, do apply to Plaintiffs. For the most part, each version of the Terms and Conditions contain similar provisions, and any differences are not particularly relevant to the parties' dispute. However, because different terms and conditions were in effect when Plaintiffs' tests were activated - the point in time when Defendant alleges that Plaintiffs agreed to its Terms and Conditions -- the Court will detail the relevant differences between those versions.

Plaintiff Alex Coatney's DNA test was registered on December 29, 2017 (Doc. 211, ¶ 12)^[4], Plaintiff H.S.'s DNA test was registered on August 18, 2019 (Doc. 21-1, ¶ 22)^[5], Plaintiff B.H.'s DNA test was registered on September 25, 2019 (Doc. 21-1, ¶ 22)^[6], and Plaintiff N.S.'s DNA test was registered on January 10, 2016 (Doc. 21-1, ¶ 22)^[7]. Thus, the Court reviews the March 2015, December 2017, and July 2019 Terms and Conditions (See Doc. 21-4; Doc. 21-6; Doc. 21-12). As is relevant to the current Motion, these versions all contain a dispute resolution clause requiring binding arbitration.

The 2019 Terms and Conditions' dispute resolution clause states:

13. Dispute Resolution, Arbitration and Class Action Waiver

You and Ancestry agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.

If any dispute between us is not resolved within 30 days after contacting us, then you and Ancestry agree that we will resolve it through final and binding arbitration ...

Arbitration Rules: Arbitration may be conducted by JAMS in accordance with the JAMS Streamlined Arbitration Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.

The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms or the Privacy Statement, including but not limited to any claims that all or part of these Terms or Privacy Statement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

...

Survival: This Arbitration and Class Waiver section shall survive any termination of your account or the Services.

(Doc. 21-12, ¶ 13).

The 2017 Terms and Conditions' dispute resolution clause states:

13. Dispute Resolution

We work hard to keep our customers satisfied. If a dispute arises between you and Ancestry, our goal is to provide a cost-effective means of quickly resolving the dispute. If you have any concern or dispute about the Services, you agree to first try to resolve the dispute informally by contacting us

...

If your dispute is not resolved within 30 days after contacting us, then you and Ancestry agree that we will resolve it through final and binding arbitration...

Arbitration Rules: To begin an arbitration proceeding, send a certified letter requesting arbitration and describing your claim to the Ancestry Legal Department, 153 Townsend Street, Suite 800, San Francisco, CA 94107. Any arbitration will be conducted by the American Arbitration Association (AAA) under its rules and will be held in the State of Utah.

...

This dispute resolution process will continue after you have stopped using the Services.

(Doc. 21-6, ¶ 13).

The 2015 Terms and Conditions' dispute resolution clause states:

8. Governing Law; Disputes

By using the Services or the Websites, you agree that the Federal Arbitration Act, applicable federal law, and the law of the State of Utah, without regard to its principles on conflicts of laws, will govern these Terms and Conditions, your use of the Websites and the Services, and any dispute of any sort that may arise between you and Ancestry.

If a dispute arises between you and Ancestry, our goal is to provide you a neutral and cost effective means of resolving the dispute quickly. To that end, you agree to first contact Ancestry Customer Support by phone or email via the contact information below to describe the problem and seek a resolution. If that does not resolve the issue, then you and Ancestry agree that any dispute or claim relating to your use of the Services or Websites shall be resolved through binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify.

...

You and Ancestry agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class, consolidated, or representative action. Further, unless both you and Ancestry agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the foregoing, this arbitration agreement does not preclude you from bringing issues to the attention of the federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. This entire arbitration provision shall survive termination of this Agreement and the termination of your Ancestry membership(s).

To begin an arbitration proceeding, you must send a certified letter requesting arbitration and describing your claim to the Ancestry Legal Department, Ancestry.com Operations Inc., 1300 W Traverse Parkway, Lehi, UT 84043. This arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the AAA, as modified by this Agreement (collectively, “AAA Rules”). The AAA Rules and costs are available online at www.adr.org or by calling the AAA at 1-800-778-7879.

(Doc. 21-4, ¶ 8).

Further, all versions of the terms clarified that Defendant's services, including its DNA services, are intended for adults. However, the terms contemplate minors using Defendant's services through accounts managed by the minor's parent or legal guardian. The 2019 and 2017 Terms and Conditions both provide:

1. Eligibility to Use the Services

Users of the Services may include

...