David Tompkins v. 23andme, Inc.

Concurrence by Judge WATFORD

*1018 ORDER

The opinion filed August 23, 2016, is hereby amended as follows:

On page 1031 of the opinion:

is amended to:

On page 1031 of the opinion, the following sentence is deleted:

On page 1031-32 of the opinion:

is amended to:

No further petitions for rehearing or rehearing en banc will be entertained from this amendment.

OPINION

Under the terms of the agreement at issue here, the customers of 23andMe, Inc., were required to arbitrate the present action. The district court enforced the terms of that agreement and granted 23andMe’s ‘motion to compel arbitration. We hold that none of the challenged portions of the arbitration provision, alone or in concert, render the arbitration provision unconscionable under current California law. We therefore affirm.

I

23andMe, Inc., provides a direct-to-'consumer genetic testing service, which it calls' the “Personal Genome Service.” A customer interested in obtaining the genetic testing service must visit the 23and-Me website to purchase an online DNA testing kit. When purchasing the kit, the customer can click on-a link to the company’s Terms of Service that was available at the bottom of the…

concurring in the judgment:

I agree with the majority that the arbitration provision is valid and enforceable, albeit for different reasons. Like the district court, I see no need to address whether the fee-shifting clause is substantively unconscionable because 23andMe has waived its right to enforce that clause—a clause that would have been sev-erable in any event. As for the venue-selection clause, it cannot be deemed substantively unconscionable as to these plaintiffs. Three of the class actions involved in this appeal were filed in the District Court for the Northern District of California, and the plaintiffs in each of the other class actions voluntarily transferred their actions to that court. So, provided the cases can proceed on a class-action basis, it seems obvious that litigating in an arbitral forum in San Francisco will not pose any undue hardship for the plaintiffs. At oral argument, 23andMe conceded that these cases may proceed as class arbitrations (the arbitration provision does not contain a class-action waiver), and the rules of the arbitration provider designated by the parties specifically provide for class arbitration. Finally, the arbitration provision’s…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID TOMPKINS, an No. 14-16405 individual, on behalf of himself and others similarly situated, D.C. No. Plaintiff-Appellant, 5:13-cv-05682-LHK

v.

OPINION

23ANDME, INC., Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

Argued and Submitted May 12, 2016 San Francisco, California

Filed August 23, 2016

Before: Stephen S. Trott, Sandra S. Ikuta, and Paul J. Watford, Circuit Judges.

Opinion by Judge Ikuta; Concurrence by Judge Watford TOMPKINS V. 23ANDME, INC.

SUMMARY*

Arbitration / California Law

The panel affirmed the district court’s order enforcing the terms of a Terms of Service agreement, and granting 23andMe, Inc.’s motion to compel arbitration.

Plaintiffs are a class of 23andMe customers who purchased a DNA test kit and assented to an online Terms of Service, and they challenged the 23andMe arbitration provision under the California doctrine of unconscionability.

The panel held that none of the challenged portions of the arbitration…