Tompkins v. 23andMe, Inc., No. 14-16405 (9th Cir. 2016)Annotate this Case
Multiple plaintiffs filed different class actions against 23andMe relating to the company’s health claims. 23andMe, a direct-to-consumer provider of genetic testing service, claimed that its service could be used to help customers manage health risks, as well as prevent or mitigate diseases such as diabetes, heart disease, and breast cancer. The district court granted 23andMe's motion to compel all plaintiffs to arbitrate their claims. After reviewing the mandatory arbitration provision in the Terms of Service, the district court concluded that the arbitration provision at issue was enforceable. The court concluded that under principles established by recent California Supreme Court decisions, California’s common law rule of unconscionability does not provide a basis to revoke the arbitration agreement in the Terms of Service. In this case, the court concluded that plaintiffs failed to carry their burden of demonstrating the substantive unconscionability of the bilateral prevailing party clause; that the forum selection clause is unconscionable; that the intellectual property exemption is unconscionable under current California law; and that the unilateral modification provision renders the arbitration clause, set forth in a separate provision, unconscionable. Therefore, the arbitration agreement is valid, irrevocable, and enforceable. The court affirmed the judgment.
The court issued a subsequent related opinion or order on October 13, 2016.