The Court of Appeals for the Ninth Circuit issued its ruling on our appeal and the order sending the case to arbitration was upheld. Here's the opinion in full.
We're disappointed, to say the least. There are some very strong arguments based on unconscionability under California law and a close read of the opinion shows that Judge Ikuta (who wrote the opinion) missed the mark in several places, quoting only portions of the California court decisions and not the full context. We may ask for "rehearing en banc," which means that instead of a three judge panel, the case will be re-briefed and re-argued in front of a panel of eleven judges. It's not frequently granted but it happens sometimes when other active judges think that there's an important issue that didn't get a complete consideration by the original three-judge panel.
Of note is Judge Watford's concurring opinion, noting that 23andMe has agreed that the arbitration will be a class-action, which means we have a strong chance of getting complete relief for the folks who've been ripped off. Very odd to have that happen; for nearly every consumer contract, the only real reason to use an arbitration provision is to wipe out the chance for a class action. 23andMe didn't do that in their Terms of Service, oddly.