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Kirk Nahra Discusses Denial of Class Certification in DNA Testing Company Lawsuit

Bloomberg-BNA Privacy Law Watch
August 4, 2017

Kirk J. Nahra, chair of Wiley Rein’s Privacy & Cybersecurity Practice, was quoted in an August 3 Bloomberg BNA article about privacy claims alleging that a DNA testing company publicly disclosed customers’ genetic information without their consent. On July 28, the U.S. District Court for the District of Alaska denied class certification for about 900 customers, in part because the company had provided them with inconsistent release forms. The court determined that the company must instead face individual claims under Alaska’s Genetic Privacy Act.

Mr. Nahra said companies shouldn’t “try to avoid class action risks by changing their policies and forms constantly.” The chance of making a mistake during the process is “significantly higher than the benefits of potentially avoiding a class certification.”

In a prior decision in June, the court determined that the lead plaintiff had demonstrated sufficient “concrete” injury to sue the company in federal court. The plaintiffs then moved for class certification.

Even though the court declined to certify the class of 900 members, “the court is not saying there is no concrete injury,” said Mr. Nahra. The court is “focusing on how that injury – if it exists – would be sufficiently different among the class members that it mitigates against class certification,” he concluded.