defendant's answer in cole v. gene by gene

Answer Page 1 of 14 Cole v. Gene by Gene, Ltd. Case No. 1:14-cv-00004-SLG

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Timothy M. Lynch LYNCH & ASSOCIATES, P.C. 425 G Street, Suite 420 Anchorage, Alaska 99501 (907) 276-3222 telephone (907) 278-9498 facsimile [email protected] Katie S. Davies LYNCH & ASSOCIATES, P.C. 425 G Street, Suite 420 Anchorage, Alaska 99501 (907) 276-3222 telephone (907) 278-9498 facsimile [email protected] Attorneys for Gene by Gene, Ltd.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

MICHAEL COLE, individually and on ) behalf of all others similarly situated ) ) Plaintiff, ) v. ) ) GENE BY GENE, LTD., a Texas Limited ) Liability company d/b/a FAMILY TREE ) DNA, ) ) Defendant. ) ) Case No. 1:14-CV-00004-SLG

ANSWER

Comes now Defendant, Gene By Gene, Ltd., a Texas Limited Liability company

d/b/a Family Tree DNA by and through its attorneys, Lynch & Associates, P.C. and for its

answer to Plaintiffs Class Action complaint, admits, denies and alleges as follows:

I

Case 1:14-cv-00004-SLG Document 20 Filed 07/25/14 Page 1 of 14


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With regard to the unnumbered introductory paragraph of Plaintiffs complaint,

Defendant denies that they have unlawfully disclosed Plaintiffs and the proposed Classs

highly sensitive genetic information. With regard to all of the other allegations contained in the

unnumbered introductory paragraph of Plaintiffs complaint, Defendant does not perceive any

allegations seeking to state a cause of action against them. Therefore, it is not necessary to

either admit or deny any of the allegations stated therein. Consequently, Defendant declines to

respond to those allegations. To the extent that based upon the allegations in this paragraph

Plaintiff seeks to assert a cause of action against the Defendant, those allegations are denied.

II

With regard to paragraph 1 of Plaintiffs complaint, Defendant admits that they sell

DNA testing kits to consumers. Defendant further admits that upon receiving the kit back from

a purchaser Defendant performs an analysis on the sample contained in the kit and provides the

consumer with the results. The customer does not visit its web site to conduct ancestry

research, but rather to compare their DNA results to the other results in the database in order to

find matches or close matches pursuant to the Release Form that each of the consumers signed

prior to Defendant performing the test. The consumer may, if he or she chooses, join a surname

project which is administered by a non-employee volunteer, who helps conduct ancestry

research based on their Y-DNA test results. The privacy policy of the company, referred to in

the Release Form that the customer has signed, contains the privacy terms related to surname

projects. The project administrator does not work for Defendant or Family Tree DNA nor is

there any financial relationship between the Defendant and the volunteer project administrator.

Defendant denies all of the remaining allegations contained in this paragraph which seek to

state a cause of action against them.



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III

With regard to paragraphs 2 and3 of Plaintiffs complaint, Defendant denies all of

the allegations which seek to state a cause of action against them.

IV

With regard to paragraph 4 of Plaintiffs complaint, Defendant alleges that this is, in

fact, a prayer for relief rather than allegations seeking to assert a cause of action against the

Defendant. Defendant denies that the Plaintiff is entitled to such relief.

V

With regard to paragraph 5 of Plaintiffs complaint, Defendant alleges a lack of

information sufficient to form a belief as to the truth of the allegations contained therein and,

therefore, denies all such allegations.

VI

With regard to paragraph 6 of Plaintiffs complaint, Defendant admits all of the

allegations contained therein.

VII

With regard to paragraph 7 of Plaintiffs complaint, Defendant admits that this

Court has jurisdiction pursuant to 28 U.S.C. 1332(d) because Plaintiff and Defendant are each

residents of different states. In addition, Plaintiff alleges in paragraph 49 of the complaint that

he seeks a judgment in the amount of $100,000 which amount exceeds the statutorily required

$75,000 as the amount in controversy exclusive of interest and costs. Defendant denies all of

the remaining allegations contained in this paragraph which seek to state a cause of action

against them.



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VIII

With regard to paragraph 8 of Plaintiffs complaint, Defendant admits that this

Court has personal jurisdiction over them. Defendant denies all of the remaining allegations

contained in this paragraph which seek to state a cause of action against them.

IX

With regard to paragraph 9 of Plaintiffs complaint, Defendant admits that venue is

proper in this District. Defendant denies all of the remaining allegations contained in this

paragraph which seek to state a cause of action against them.

X

With regard to paragraphs 10 through 13 of Plaintiffs complaint including

footnotes 1 through 5 referenced in those paragraphs, Defendant does not perceive any

allegations seeking to state a cause of action against them. Therefore, it is not necessary to

either admit or deny any of the allegations stated therein. Consequently, Defendant declines to

respond to these paragraphs. To the extent that based upon the allegations in these paragraphs


XI

With regard to paragraphs 14 through 17 of Plaintiffs complaint, Defendant does

not perceive any allegations seeking to state a cause of action against Defendant. The

paragraphs contain Plaintiffs summary of what he perceives to be the law of Alaska without

specific reference to any allegations against Defendant. Therefore, it is not necessary to either

admit or deny any of the allegations stated therein. Consequently, Defendant declines to

respond to these paragraphs. To the extent that Plaintiff seeks to allege in any or all of these

paragraphs that Defendant has violated Alaskas Genetic Privacy Act, those allegations are



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denied. Defendant denies all of the remaining allegations contained in this paragraph which

seek to state a cause of action against them.

XII

With regard to paragraph 18 of Plaintiffs complaint, Defendant admits that Family

Tree DNA was founded in 2000. Defendant is d/b/a Gene By Gene LTD. Defendant admits

that Family Tree DNA offers genetic testing services including marketing and selling DNA

tests to consumers for the purpose of helping them to perform genealogic research. With

regard to all of the other allegations contained in paragraph 18 including the footnote

referenced therein, Defendant does not perceive any allegations seeking to state a cause of

action against them. Therefore, it is not necessary to either admit or deny any of the remaining

allegations. Consequently, Defendant declines to respond to those allegations. To the extent

that based upon the allegations in this paragraph Plaintiff seeks to assert a cause of action

against the Defendant, those allegations are denied.

XIII

With regard to paragraph 19 of Plaintiffs complaint, Defendant admits that in order

for a customer to take one of its tests, the customer must visit the Defendants website; identify

the type of DNA test they wish to take; make payment; and provide contact information. With

regard to all of the other allegations contained in paragraph 19, Defendant does not perceive

any allegations seeking to state a cause of action against them. Therefore, it is not necessary to

either admit or deny any of the remaining allegations. Consequently, Defendant declines to

respond to those allegations. To the extent that based upon the allegations in this paragraph




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XIV

With regard to paragraph 20 of Plaintiffs complaint, Defendant admits that once the

Plaintiff completed his order, Family Tree shipped to him a DNA collection kit. The kit

contained the cotton swab testing kit (to collect the Plaintiffs DNA), instructions on how to

complete the test and return it for analysis, and a Release Form. The customer has the option of

signing or not signing the Release Form, which refers to the Privacy Policy available at the

Defendants website. Defendant denies all of the remaining allegations in said paragraph and

in the footnote referenced therein which seek to state a cause of action against them.

XV

With regard to paragraph 21 of Plaintiffs complaint, Defendant admits that the

Plaintiff was notified by email when the analysis of his sample was completed. Defendant

further admits that all consumers learn from the Family Tree DNA website that they can review

pages on the website dedicated to various surname projects and join one if they wish and if they

agree to the terms related to joining a surname project, which are stated in the Privacy Policy,

referred to in the Release Form that the Plaintiff has signed. The search for the surname

projects is a word search by name not by DNA results. The consumer, when he or she selects a

particular surname project to join, has the option to contact the volunteer surname project

administrator. The volunteer project administrator does not work for Defendant or Family Tree

DNA nor is there any financial relationship between the Defendant and the volunteer project

administrator. The volunteer surname administrator is a genealogy enthusiast who has as a

hobby to help further the genealogy research of the different lines that bear his surname.

Defendant, denies all of the remaining allegations in said paragraph.



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XVI


Plaintiff was able to and did access the Taylor surname forum from the Family Tree DNA

website. Defendant denies all of the remaining allegations in said paragraph which seek to


XVII


Plaintiff was able to and did access the Taylor surname project and joined it. Defendant denies

all of the remaining allegations in said paragraph which seek to state a cause of action against

them.

XVIII

With regard to paragraphs 24 through 26 of Plaintiffs complaint, Defendant denies

all of the allegations contained therein which seek to state a cause of action against them.

XIX

With regard to paragraph 27 of Plaintiffs complaint, Defendant admits all of the

allegations contained therein.

XX

With regard to paragraphs 28 through 31 of Plaintiffs complaint, Defendant denies

all of the allegations contained therein which seek to assert a cause of action against them.



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XXI

With regard to paragraph 32 of Plaintiffs complaint, Defendant admits that a non-

employee volunteer surname project administrator without authorization by Defendant posted

Michael Coles name, email address and kit number on the website operated by RootsWeb (a

subsidiary of Ancestry.com, a competitors company that allows users to research their

lineage). Defendant denies all of the remaining allegations in said paragraph which seek to


XXII

With regard to paragraph 33 of Plaintiffs complaint, Defendant alleges that Plaintiff

signed the Release Form which clearly states what information will be released and refers to

the Privacy Policy. The Privacy Policy states that the Defendants information will be available

to the volunteer project administrator. Defendant denies they made the Plaintiffs information

publicly available. Defendant denies all of the remaining allegations in said paragraph which

seek to state a cause of action against them.

XXIII

With regard to paragraph 34 of Plaintiffs complaint, Defendant denies that relief in

accordance with Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3) is appropriate in this

matter. Defendant further denies they have acted on grounds that apply generally to a

proposed class so that any final injunctive relief or corresponding declaratory relief is

appropriate to a class of individuals. Additionally, Defendant denies that there exist questions

of law or fact which would be common to class members such as would predominate over any

questions affecting only the Plaintiff herein. As a result, a class action would not be superior to

any other available method for fairly and efficiently adjudicating this controversy. Finally, the



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Defendant denies any and all allegations in this paragraph which seek to state a cause of action

against them.

XIV

With regard to paragraph 35 of Plaintiffs complaint, Defendant denies the

allegation that it has deceived and profited from thousands of consumers, including but not

limited to the Plaintiff herein, who might fall within the Plaintiffs definition of a proposed

Class. The Plaintiffs allegations as to the process by which he claims to have been harmed are

unique to him. Plaintiff seeks to embark upon a fishing expedition through the Defendants

records obtaining access to data that is protected by confidentiality agreements which the

Defendant has with other consumers. Defendant denies all allegations as to numerosity

asserted in this paragraph. Finally, the Defendant denies any and all allegations in this

paragraph which seek to state a cause of action against them.

XXV


allegation that there exist many questions of law and fact in the Plaintiffs claim which would

be common to a class of other consumers who have purchased a DNA collection kit and

submitted the same to the Defendant for analysis. The event complained of by the Plaintiff is

unique to him and there exists a significant likelihood that issues of damages, liability and the

defenses to liability as they relate to the Plaintiff individually would not affect other individuals

in the proposed class in the same manner. Finally, the Defendant denies any and all allegations

in this paragraph which seek to state a cause of action against them.



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XXVI


allegation that the Plaintiff and his attorney have no interest that is adverse to the other

members of the Class. Plaintiff seeks to embark upon a fishing expedition through the

Defendants records obtaining access to data that is protected by confidentiality agreements

which the Defendant has with other consumers. Plaintiff seeks to enjoin the provision of a

service which has been utilized productively by thousands of consumers who are interested in

genealogical research. Putting the Plaintiff and his counsel in control of litigation which may

result in the destruction of such a process would be patently unfair and disruptive to the lives

and avocations of a very large number of individuals. Finally, the Defendant denies any and all

allegations in this paragraph which seek to state a cause of action against them.

XXVII

With regard to paragraph 38 of Plaintiffs complaint, Defendant denies that a class

action would be an appropriate form of proceeding for the adjudication of the claims asserted

by the Plaintiff. The Defendant denies that they have engaged in any unlawful or wrongful

conduct. The Defendant denies the allegation that this action is appropriate for certification as

a class action in accordance with Federal Rule of Civil Procedure 23. Defendant denies that the

grounds asserted by the Plaintiff have general application to any other potential members of the

class thereby requiring imposition of some form of uniform relief to ensure compatible

standards of conduct toward members of the proposed class resulting in either an injunction or

declaratory relief. Defendant further denies that the actions complained of by the Plaintiff have

been experienced by any other member of the potential class. Defendant asserts that the actions

complained of by the Plaintiff were unique to the Plaintiff and were not experienced by other



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members of the proposed class. The Defendant denies that all members of the proposed class

would be entitled to either injunctive or declaratory relief. The Defendant denies that all

members of the proposed class would wish that the injunctive or declaratory relief sought by

the Plaintiff be entered by this court. Finally, the Defendant denies any and all allegations in

this paragraph which seek to state a cause of action against them.

XXVIII

With regard to paragraph 39 of Plaintiffs complaint, Defendant denies all of the

allegations that a class action would be a superior form of proceeding for the adjudication of

the claims asserted by the Plaintiff. The Plaintiff alleges that the comprehensive supervision

by a single Court is a feature which supports the superiority of a class action over an

individual action by the Plaintiff. The Plaintiff bases his complaint upon violation of AS

18.13.010 et seq. When compared with DNA privacy statutes across the country, Alaskas

statutory scheme is unique. Additionally, there is only one U.S. District Court of Alaska. As a

result, the prospect of there being a lack of uniformity of judicial decisions is nonexistent.

Finally, the Defendant denies any and all allegations in this paragraph which seek to state a

cause of action against them.

XXIX

With regard to paragraph 40 of Plaintiffs complaint, the Defendant realleges and

incorporates herein by reference all of the admissions, denials and allegations contained in

paragraph I through XXVIII above as if more fully set forth herein.

XXX

With regard to paragraph 41 of Plaintiffs complaint, the Defendant alleges that

Family Tree DNA engages in performing at the request of individual consumers DNA test to



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assist those individuals in genealogical research. Moreover, there is nothing in the Y-DNA,

which is the portion of the Plaintiffs DNA being tested, that can lead to any health related

information. The Y-DNA test is a purely genealogy and ancestry test. The Defendant denies all

of the allegations contained in said paragraph which seek to assert a cause of action against

them.

XXXI

With regard to paragraph 42 of Plaintiffs complaint, the Defendant admits that the

Plaintiff purchased a DNA test kit from Family Tree. The Defendant denies all of the other

allegations contained in said paragraph which seek to assert a cause of action against them.

XXXII

With regard to paragraphs 43 through 48 of Plaintiffs complaint, the Defendant

denies all of the allegations contained in said paragraphs which seek to assert a cause of action

against them.

XXXIII

With regard to paragraph 49 of Plaintiffs complaint, Defendant alleges that this is,

in fact, a prayer for relief rather than allegations seeking to assert a cause of action against the

Defendant. Defendant denies that the Plaintiff is entitled to such relief.

XXXIV

With regard to all of the allegations in Plaintiffs complaint which seek to assert a

cause of action against them that have not heretofore been specifically admitted, the same are

hereby denied.

By way of further answer and by way of



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FIRST AFFIRMATIVE DEFENSE

Plaintiff has failed to state a claim for relief.

SECOND AFFIRMATIVE DEFENSE

Any award of damages to the Plaintiff must either be eliminated or reduced by an

amount equal to the plaintiffs comparative negligence.

THIRD AFFIRMATIVE DEFENSE

Plaintiff knowingly and willingly executed a release permitting the release of the

DNA test results and his contact information.

FOURTH AFFIRMATIVE DEFENSE

Plaintiff agreed in writing to hold Defendant harmless from all consequences of

sharing his DNA test results and contact information.

Wherefore, having set forth their answer to Plaintiffs complaint, Defendant prays

for entry of judgment as follows:

1. That Plaintiff take nothing by his complaint;

2. That Defendant be awarded their litigation costs and attorney fees; and

3. The Defendant receive such other and further relief as may be appropriate.

RESPECTFULLY submitted at Anchorage, Alaska this 25th day of July, 2014.

LYNCH & ASSOCIATES, P.C. Attorneys for Defendant By: /s/ Timothy M. Lynch Timothy M. Lynch LYNCH & ASSOCIATES, P.C. 425 G Street, Suite 420 Anchorage, AK 99501

(907) 276-3222 Telephone (907) 278-9498 Facsimile [email protected]

Alaska Bar No. 7111030



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By: /s/ Katie S. Davies Katie S. Davies LYNCH & ASSOCIATES, P.C. 425 G Street, Suite 420 Anchorage, AK 99501

(907) 276-3222 Telephone (907) 278-9498 Facsimile [email protected]

Alaska Bar No. 1106058

Certificate of Service The undersigned herby certifies that on 25th day of July, 2014 a true and correct copy of the foregoing was served via the CM/ECF delivery system upon: Douglas K. Mertz Attorneys for Plaintiff Jay Edelson Rafey S. Balabanian Benjamin H. Richman J. Dominick Larry David I. Mindell /s/ Timothy M. Lynch Lynch & Associates, P.C.


defendant's answer in cole v. gene by gene

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