Opt in or opt out
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
- See Judy G. Russell, “Fooling with FDA,” The Legal Genealogist, posted 26 Nov 2013 (https://www.legalgenealogist.com/blog : accessed 24 Sep 2017). ↩
- See ibid., “23andMe suspends health tests,” posted 6 Dec 2013). ↩
- See “A New 23andMe Experience,” posted 21 Oct 2015, 23andMe Blog (http://blog.23andme.com/ : accessed 24 Sep 2017). ↩
- 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). ↩
As far as I can gather this only applies to US residents.
That would make sense, since the loss of health data only affected US residents.
I am having a very hard time using my $40 credit in conjunction with their current sale. You might want to prepare yourself for many emails and phone calls.
Just, I am in this class but haven’t seen the email (and I’ve checked my spam file). When was it sent?
Darn autocorrect! Turned “Judy” into “Just”! Apologies.
🙂
Dave, my email was dated Sept. 15th. It came to my regular in box, but I didn’t see it till I searched for the email Judy listed above. Copy and paste this address donotreply@23andmesettlement.com in your email search box and see if it shows up. That’s how I found it.
Mine was dated 15 September.
Darn! My spam filter for the account I use for 23andMe automatically and permanently deletes spam after a week, so I’m out of luck.
I would us the Contact Us link at the website and ask for a resend.
Judy, Thank you for this helpful summary/explanation. Would you be able to comment on how this settlement might set a precedent for future cases? I’m thinking in particular of third-party interpretation sites like Promethease that essentially return the same type of information/reports for which 23andMe is now paying remuneration to customers. Is there any way others who do the same type of reporting (even if they aren’t doing the testing themselves) could be held to the same standard under the law?
I’m not an expert in this area of regulatory law so can’t predict how the FDA might view a site like Promethease, but it seems to me as a legally-educated-layman here that the key differences were (a) 23andMe was seeking regulatory approval for its tests and put itself in a different position and (b) 23andMe was advertising based on its tests that that’s fundamentally different.
Judy,
On June 19, 2013, I purchased 3 test kits (for my mother, father, and grandmother). I have not received an email regarding the suit. I checked the website for the class action settlement, and in the FAQ section 4 “Am I part of this Class?” it states,
” If you fit into the following description, you are a Class Member:
All persons and entities resident in the United States of America who purchased for personal use the PGS from 23andMe during the Class Period other than for purposes of resale or distribution or to provide to third parties for purposes of research or education.”
Am I excluded from the class because I purchased these as a gift for others?
Thank you for clarifying!
I don’t believe so, and in your case I would use the Contact Us link on the settlement website page to report that you need your PIN numbers.
Or be ethical and not scam them out of money. W got our health stuff and even when the fda decided to be jealous a holes it was still available. This is super petty.
Hard to describe the FDA as the bad guy here when this was entirely a self-inflicted wound by 23andMe asking for FDA approval and then refusing to do what the FDA asked…
I agree Jack…This is super petty. I am very upset with the FDA for ruining a great thing. Judy, I think you are incorrect, the FDA stopped 23andme because they were concerned that people might make rash decisions with the information they received. Then 23andme complied to get approval and it is a super slow process. Unfortunately, this ruined the best part of 23andme….And it turns out their tests were accurate all along.
Nope, 23andMe asked to have FDA approval and then stopped cooperating with the FDA’s data requests (see here). Totally self-inflicted wound here.
Q: does this include DNA test from what I received through Ellis Island genealogy???
It depends on whether it was a regular 23andMe test and whether that kit is covered in the definition of the class.
Will they know who many tests I have orderedd during that time period. at least 10 or more. Do I have to go back and check credit card statements/
You should ask them that question. There’s a Contact Us page on the settlement website.
I purchased 4 kits. Do I need to do a different form for each kit or is it per person so I would only do 1?
That’s a question you might want to pose to the settlement team via the contact us link on the settlement webpage.
Hi Judy, I just received my email. I’m grateful to find your page & info. If you can’t answer this, maybe you could suggest whether I reach out to the law firm or to 23andme or…
I recently learned that 23&me has updated their genomics chip from V3 to V5, and that people with a sample on file will be able to purchase an “upgrade” to have our data run against the new V5 chip and receive new, FDA approved reports. Would the $40 certificate be applicable to this?
I ask because I recently logged on to revisit my (pre-FDA kerfuffle) health reports and found they’d been archived, and to get the new & approved reports was twice what I had paid. I reached out to 23andme, and was told about the chip upgrade and that while upgrading a existing sample is not yet available, it will be.
I haven’t been able to find an answer to this and can only suggest that you ask using the Contact Us page on the settlement website.
Thank you. Will do.
I just got my email last week. It says you get the $40. certificate if you do nothing.
Correct: you only need to act if you choose another option.
FYI, folks, I had purchased two kits, and the system knew that and let me put in that I wanted compensation for both.
Great information. Personally, I will not be submitting my claim. I’m extremely happy with what I purchased from them. If the FDA wanted to take 3 years to confirm something arbitrary (which is why 23andMe stopped complying), that’s their own issue. There are multiple sites up where you can take your info from 23and’e and plug it in to see how your genome lines up in regards to certain traits/risks. FDA was concerned about dumbing down a product that was extremely useful and was moving too slow. Bottom line, the product was/is exactly what I wanted therefore, ethically, I will not take any money from the settlement.
It’s an individual choice for sure: take the cash, take and use the coupon, or get the coupon and don’t use it.
I’d rather the FDA were abolished.
For anyone who says such a thing, I have exactly one word: history. You’ve clearly forgotten it. Try a Google search for thalidomide — and realize how much the FDA actually does to protect us from these kinds of results.
I don’t wish for abolishment. FDA is, in theory, exactly what is needed. However, the agency has become extremely conflicted in what it chooses to focus on and what is does not. Too many conflicts of interest from budgeters, outside lobbyists, hired ‘specialists’ and so on.
And particularly in today’s political climate you won’t find me disagreeing.
I just got my email. I got exactly what I expected when I bought my kit and knew exactly what to expect when I bought kits for my parents. I was disappointed to hear about the lawsuit simply due to the possibility that we would lose an information system that offers a huge potential for the whole human race.
No risk to the system, and you can opt out if you choose to.
Judy,
On March 12 I received an email – Subject line –
Your 23andMe Certificate – Davis-Hudson, et al. v. 23andMe, Inc. Settlement
The email contains 17 address like this –
https://store.23andme.com/en-us/cart/?coupon=PU5PWO1SWS0A&kit=1&new=1
I haven’t tried to use one of these but I am wondering if they are valid.
They sure should be valid: those are your certificates from the class action case that you can use as discounts on new kits.