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Yes, it really is for real.

No, it’s not a scam.

Yes, you will need to act to get the maximum benefit from it.

“It,” in this case, is the settlement of a class action lawsuit against 23andMe that was handled by way of arbitration through the American Arbitration Association.

And if, like The Legal Genealogist, you bought a 23andMe DNA test kit between October 16, 2007 and November 22, 2013 for yourself or a family member, then you’re a member of the class and you have some options to choose from.

The lawsuit was filed in 2013 after 23andMe got itself in hot water with the federal Food and Drug Administration over the health-reporting component of its genetic testing service. You may recall that the FDA lit out after 23andMe in November of that year over the company’s failure to cooperate fully with the agency, and it gave 23andMe 15 days to stop marketing the health-reporting service.1

By December of that year, 23andMe had suspended its health reporting services2 and that part of the DNA testing service didn’t resume — in a less comprehensive fashion and at a much inflated price — until 2015.3

Now if your customers come to the conclusion that you’ve promised people health information and can’t deliver, or what you delivered isn’t quite what you promised, you can probably expect to get sued.

And that’s what happened to 23andMe. Customers filed a class action lawsuit, joining together and raising a variety of claims ranging from false advertising to consumer protection issues. Because of a clause in the 23andMe terms of use, the case was sent to arbitration — not a trial with a judge and a jury, but a hearing with an arbitrator.

After a lot of back and forth on whether the case should be in arbitration,4 the case was ultimately settled by both sides.

And that’s why lots of 23andMe customers got an email from the KCC Settlement Administrator with a return address of donotreply@23andmesettlement.com. If you got that email, yes it’s for real, no it’s not a scam, and yes you will need to act to get the maximum benefit from it. And if you think you didn’t get it and should have, check the spam folder of the email you use for 23andMe notices. (That’s where mine was.)

You have essentially three options:

• Opt out of the settlement — and you would only do that if you’re going to file your own lawsuit against 23andMe. If you’re going to opt out, you have to do it in writing postmarked no later than October 20, 2017.

• Object to the settlement, which won’t get you more of a benefit individually right now but would prolong the arbitration and perhaps end up with a better result — or a worse one. If you do that, it has to be in writing, by mail or email, by October 20, 2017.

• Accept the settlement and choose one of the two settlement awards.

I can’t tell you what’s right for you. I can tell you I’m accepting the settlement and that means I have to act by December 6, 2017. I will need to download the election form and either submit it online by that date or by mail — and it has to be received by that date. Postmarking isn’t going to work here.

My choices as someone who’s accepting the settlement are a $40 certificate off a future 23andMe DNA test kit or $12.50 in cash. Which one you choose is entirely dependent on whether you think there’s someone else you want to test at 23andMe: if you do, then the certificate is a good deal. If there isn’t, then you want the cash.

Whatever you do, don’t miss the deadlines. All of the information is set out in the email that was sent (and, again, you may need to check the spam folder of the email you use for 23andMe notices) or at the website set up for this class action settlement.

Yes, it really is for real.

No, it’s not a scam.

Yes, you will need to act to get the maximum benefit from it.


SOURCES

  1. See Judy G. Russell, “Fooling with FDA,” The Legal Genealogist, posted 26 Nov 2013 (http://www.legalgenealogist.com/blog : accessed 24 Sep 2017).
  2. See ibid., “23andMe suspends health tests,” posted 6 Dec 2013).
  3. See “A New 23andMe Experience,” posted 21 Oct 2015, 23andMe Blog (http://blog.23andme.com/ : accessed 24 Sep 2017).
  4. See e.g. Order Denying Petition to Vacate Arbitration Award, 23andMe v. Davis-Hudson et al., slip op. (N.D.Cal., 16 Oct 2015); PDF at Justia.com (http://law.justia.com/ : accessed 24 Sep 2017).
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