CHICAGO - Users of Ancestry.com agree to arbitrate disputes, but if they test their children then the children don’t lose the right to sue, U.S. Seventh Circuit appellate judges ruled on Feb. 15.
The appellate court affirmed District Judge David Dugan of the Southern District of Illinois, who denied arbitration of a complaint that Ancestry failed to protect the privacy of information it provided to parents.
Appellate Judge Michael Brennan wrote, “A provision in the terms designating minor children whose guardians activate a DNA test kit on their behalf as Ancestry users or parties to the terms could lead to a different result.”
“Even if Ancestry’s future terms include such language, the terms here do not,” he wrote.
“The limits of Illinois law cannot be stretched to make up for that omission,” he added.
The plaintiffs claim Ancestry disclosed or released their information to a third party by selling the business to Blackstone equity group for almost $5 billion in 2020.
Attorney Eugene Turin of Chicago filed the suit in 2021 in association with six other lawyers including Gregory Shevlin of Bruce Cook’s firm in Belleville as local counsel.
Their minor plaintiff proposed a class action, seeking $2,500 for each negligent violation of genetic privacy law and $15,000 for each willful and reckless violation.
Turin amended the complaint to replace the plaintiff with four children of two mothers.
Ancestry counsel Daniel Lombard of Chicago moved to compel arbitration in 2022, claiming legal guardians of the plaintiffs executed contracts on their behalf.
Turin responded that courts generally can’t require a party to submit a dispute to arbitration unless the party agreed to do so.
He claimed no plaintiff accessed Ancestry’s website.
He also claimed specific language in the contract proved it bound only users.
Dugan ruled in favor of the children in September 2022.
He found the terms and conditions of the contract made clear that guardians were required to obtain some level of consent from plaintiffs before submitting their DNA to Ancestry.
He found it wasn’t clear whether plaintiffs could give consent or effectively grant it.
“However, the Court is not convinced that this consent also included plaintiffs’ assent to be bound by defendant’s terms and conditions,” he wrote.
Dugan found plaintiffs consented to collection and processing of their saliva, but nothing in the documents suggested they consented to anything more.
“The court declines to read into the written documents words which are not there,” he wrote.
He rejected Ancestry’s argument that the children gained a benefit from the contract.
“Without some showing that plaintiffs physically accessed their guardians’ accounts or received their DNA results it is hard to imagine what benefit, direct or otherwise, plaintiffs received from the processing of their DNA,” he wrote.
Dugan found they had theoretical access to Ancestry and a likely right of access to results of their tests, but there were no allegations that they accessed either.
“Instead, the allegations in the amended complaint indicate the opposite,” he wrote.
Seventh Circuit judges agreed that plaintiffs were not express parties to the terms.
Brennan wrote that the only parties were the signatories and Ancestry.
“The only reference in the terms to minors is as possible subjects from whom saliva samples could be collected,” he wrote.
Brennan wrote that the terms were presumed to directly benefit its signatories.
“That both knew, expected, or even intended for plaintiffs to benefit from the agreement does not overcome that presumption,” he wrote.
“If Ancestry and the guardians expected plaintiffs to directly benefit from the terms, the terms do not state that,” he added.