23andMe Wins, Sort of

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.

Update on Chase Robocall Settlement, Part 2

The settlement was approved by the federal judge and all of the objections were overruled, but four of the objectors filed appeals which are now before the Court of Appeals for the Seventh Circuit.

The objectors are Kristina Lopez, Steve Purgahn, David Schlagel, and Tamiqueca D'Oyley. Their respective opening briefs are due October 12, 2016 with the class' opposition due November 14 and reply briefs November 28.

There's no way to predict how long the Seventh Circuit will take to rule on the appeals. It could be two years, it could resolve tomorrow in the very unlikely event that all four objectors and their lawyers give up.

When there's news to report, I'll post it here. In the meantime, if you're a class member who has filed a claim, there's nothing more to do other than wait. Documents are also posted on the settlement website, so check out GehrichTCPAsettlement.com as well for news and updates.

Reading the Terms of Service Takes 31 Hours

The Norwegian Consumer Council wanted to illustrate how complicated the Terms of Service are for popular smartphone apps. So they read them. Out loud. It took more than an entire day.

"The current state of terms and conditions for digital services is bordering on the absurd," said Finn Myrstad from the Norwegian Consumer Council. "Their scope, length and complexity mean it is virtually impossible to make good and informed decisions."

Now think about financial products like bank accounts and credit cards, which are even longer and more complicated. Courts regularly enforce them on the grounds that people read them (or have an opportunity to) and agree to them by using the service. But this is absurd, nonsense, a total fiction.

23andMe Class Action at the Court of Appeals

Yesterday was the oral argument at the Ninth Circuit in our appeal of Judge Koh's ruling that we had to take everything to arbitration instead of staying in federal court. The appeal was fully briefed early last year and the clerk notified us that the panel of three appellate judges would hear oral argument on May 12. This is rather unusual as the appeals court handles most cases just on the papers without setting it for live argument.

Here's the video from the Court's YouTube channel (yes, the federal appeals court has a YouTube channel -- awesome).

The comments from the judges are encouraging and we remain hopeful that they'll do the right thing and reverse. The customers of 23andMe who were ripped off with this fake product ought to be able to have their day in court.

The IRS Does Not and Will Not Call You

A seasonal reminder that any call claiming to be from the IRS isn't real. It's a scam, a fake, a fraud, a swindle. You probably knew that already, but a recent article in Ars Technica had this interesting report about anti-fraud technology employed by Pindrop Security, a private firm:

"We can tell if it’s an international caller, over a land line or voice over IP call, uniquely fingerprinting the device that they are using to make the call from artifacts extracted from the audio," Nelms explained. "Using that information, we can create a signature, a phoneprint. The fraudster can change the phone number, or the voice, but still be identified."

Impressive if it's true. Would be interesting to use in a civil litigation context.

Update on the Chase Robocall Settlement

I've had a number of calls recently about the Gehrich v. Chase Bank robocall settlement and thought it would be good to put down a few more details about where we are in that litigation.

We settled in 2013 and it took far longer than anyone anticipated to get both the confirmatory discovery (proving that what Chase said in settlement was true) and to get court approval for the deal. But Judge Feinerman in Chicago did give his approval, by an order issued March 2, 2016.

The only remaining issue at the trial court level is fees for the lawyers representing an objector, Tamiqueca J. Johnson D'Oyley, who lives in South Florida. Her lawyers think that they are entitled to $285,000.00 for attorneys' fees and another $9,216.53 in costs for urging the judge to do something that by his comments in open court at the final fairness hearing he indicated he was already going to do in the first place: re-allocate $950,000 from the Alert Call Subclass to the Collection Call Subclass.

We, the court-appointed attorneys for the class members, have opposed this motion for fees and we hope Judge Feinerman will rule on it shortly.

In the meantime, three other objectors -- David Schlagel, Kristina Lopez, and Steve Purghan -- have filed an appeal of the final approval order which overruled their objections to the settlement. We have no timeline on how the appeal will progress, but for now no money can be sent to class members until the final objections are ruled on and put to bed (or withdrawn voluntarily).

Please keep an eye on the settlement website for details and additional documents.