Plaintiffs Firms Feud Over 23andMe Suits

April 25, 2014
The Recorder

Technically, they're on the same side.

But instead of skirmishing with the defense, plaintiffs attorneys in a spate of suits targeting genetic testing company 23andMe Inc. are facing off against each other.

The firms are filing dueling motions, fighting to steer the litigation, and excluding each other from mediation talks, in a case some attorneys have called a mess, others a soap opera.

Plaintiffs attorneys agree that customers who purchased 23andMe DNA testing kits are entitled to compensation after the U.S. Food and Drug Administration found claims the company made about the kits' medical benefits were unverified. The attorneys' sniping centers around another question: Are 23andMe's customers bound by an enforceable arbitration clause?

Although that typically would set off a showdown between plaintiffs and defense lawyers, here the battle lines are far more murky. One group of plaintiffs firms, led by Burlingame's Cotchett, Pitre & McCarthy, has filed a class arbitration complaint with the American Arbitration Association­, a tactic another faction is seeking to block. A third group seems to be hedging its bets, filing three separate federal suits and lodging its own complaint with the AAA.

Already a slate of attorneys has filed a motion to be appointed interim lead counsel—an aggressive move in a consumer class action, where attorneys say the role is usually determined by an informal consensus. Others are likely to make a grab for the role as well.

While plaintiffs firms bicker, the defense is rolling its eyes.

"This is about the plaintiffs firms jockeying for position, trying to get control of the case," said 23andMe attorney James Kramer, chairman of Orrick, Herrington & Sutcliffe's securities litigation and regulatory enforcement group. "At the end of the day, it's not a good use of time and effort to engage in this approach."

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