CHICAGO – U.S. District Judge David Dugan correctly dismissed a class action claim that Blackstone Inc. violated privacy of genetic testing data when it bought Ancestry.com, Seventh Circuit appellate judges ruled on May 1.
Circuit Judge Michael Scudder wrote, “The plaintiffs focus on Blackstone’s wealth and invite us to infer that the firm somehow forced or pressured Ancestry to disclose protected information by virtue of its market power.”
“But that inference is far too attenuated for us to credit based on the few facts alleged in the complaint,” he added.
St. Clair County resident Carolyn Bridges sued Blackstone in 2021, after Blackstone bought Ancestry for about $4.7 billion.
Gregory Shevlin of Bruce Cook’s firm in Belleville filed the complaint in St. Clair County Circuit Court in association with three Chicago area lawyers and one from Pennsylvania.
Shevlin claimed Blackstone compelled disclosure of genetic information in violation of the Genetic Information Privacy Act, which Illinois legislators enacted in 2008.
Legislators designed the Act to prevent employers and insurers from using genetic tests as a means of discrimination for employment or underwriting.
Section 30 of the Act provides that no person may disclose or be compelled to disclose results of testing or the identity of a person upon whom a test is performed.
The complaint alleged that Bridges didn’t give permission for Ancestry to transfer her data to a third party or for Blackstone to take possession of it.
It alleged that Bridges would not have provided genetic information to Ancestry if she had known Blackstone would take possession of it without their consent.
It alleged that the class could include hundreds of thousands of individuals.
Blackstone removed the complaint to the U.S. District Court for the Southern District of Illinois on the basis of diverse citizenship as a Delaware corporation in New York City.
Bridges later added Illinois resident Raymond Cunningham as a second plaintiff.
Blackstone moved to dismiss the complaint for failure to state a claim, and Dugan granted the motion without prejudice last July.
He found the words, “no person may disclose,” prohibits a person who possesses data from improperly disclosing the data to another.
He also found the words, “no person may be compelled to disclose,” protects a person who possesses data from being compelled to disclose the data to another.
Dugan concluded Blackstone didn’t fit neatly into either category.
“Plaintiffs do not allege that Blackstone disclosed Plaintiffs’ genetic data in violation of the first clause,” he wrote.
“Nor do Plaintiffs allege that Blackstone compelled Plaintiffs to disclose their data in violation of the second clause,” he added.
Dugan called it a quasi subrogation claim seeking redress for Blackstone’s compelling of Ancestry’s alleged improper disclosure of data.
“Notably, Plaintiffs are not bringing a claim against Ancestry for its alleged part in improperly disclosing their data to Blackstone,” he wrote.
He found two reasons for the failure of the complaint.
“First, plaintiffs failed to allege that Blackstone compelled Ancestry,” he wrote.
“Second, plaintiffs failed to allege that Blackstone otherwise received data that is protected by the Genetic Information Privacy Act,” he added.
Dugan found that to compel means more than passive receipt of information.
He found that the plaintiffs argued that Blackstone asserted untoward influence or force over Ancestry, “because of Blackstone’s wealth and alleged notorious reputation.”
He also found the complaint showed Ancestry had wealth comparable to Blackstone.
Dugan granted leave to amend the complaint.
Rather than amend the complaint, Bridges and Cunningham appealed.
Seventh Circuit judges found they could not plausibly infer that a run of the mill corporate acquisition resulted in compulsory disclosure.
Scudder wrote, “The plaintiffs’ complaint was bare bones.”
Circuit judges David Hamilton and Doris Pryor concurred.
Martin Roth, Alyssa Kalisky, and Ameila Bailey of Chicago represented Blackstone.