Plaintiffs Fail to Crack the (Genetic) Code as Another Court Holds Illinois’s GIPA Does Not Apply to Life Insurance Underwriting Thompson v. Prudential Insurance Co. of America, No. 3:23-cv-03904 (S.D. Ill. Mar. 31, 2025). After seeing success in privacy class actions under Illinois’s Biometric Information Privacy Act (BIPA), the plaintiff’s bar in recent years has turned its attention to BIPA’s sister statute, the Genetic Information Privacy Act (GIPA). Originally passed in 1998, GIPA was intended to bar discrimination on the basis of genetic information. It was amended in 2008 when BIPA was passed, with courts now interpreting the statutes similarly. Like BIPA, GIPA includes a private right of action with statutory damages for each violation. Since 2023, three Illinois federal decisions have relied on BIPA-interpretation cases to hold that an individual only needs to allege a violation of legal rights to bring a private right of action under GIPA. This has spurred class actions alleging that employers or health insurers seeking family medical history violate GIPA’s prohibition on the collection of genetic information. In this case, the plaintiff unsuccessfully tried to expand GIPA’s reach to life insurers. The plaintiff argued that life insurance medical exams “created” genetic information through family medical history questionnaires and bloodsample testing and that GIPA barred life insurers from using this information to make underwriting decisions. The life insurers argued that GIPA’s text, framework, and legislative history all make clear that GIPA’s bar on insurers’ use of genetic information only applies to health insurers. School’s Out, But Civil Procedure Class Is In In a complete defense win, the district court agreed with the life insurers, relying heavily on an analogous opinion issued just months earlier. The court also rejected the plaintiff’s attempt to distinguish her case by arguing that the defendants were covered by the statute because they also offered separate health insurance products, and thus were health insurers. The court found that applying GIPA in this manner would create an “anomalous regulatory scheme” whereby the same conduct (using genetic information for life insurance underwriting) would not be regulated when the insurer offers only life insurance products, but would be when the insurer also offers health insurance products. n The Lying Down Unnamed Class Member Laboratory Corp. of America Holdings v. Davis, No. 24-304 (U.S. June 5, 2025). The Supreme Court heard oral argument on April 29, 2025 in a case that might have settled an important question for insurers that face class actions: whether a federal court may certify a Rule 23(b)(3) class that includes uninjured class members who lack standing. That case involved an Americans with Disabilities Act challenge to a self-service kiosk option that was inaccessible to blind patients, but the putative class included people who would have chosen to check in at the front desk instead of through the kiosk option anyway. However, the district court narrowed the operative class definition while the interlocutory appeal was pending, and on June 5, the Supreme Court dismissed the writ of certiorari as improvidently granted. The following patchwork of approaches by district and appellate courts therefore remains intact: (1) Article III bars certification of a damages class that includes any members without standing; (2) a damages class can be certified if there is only a de minimis number of class members without standing; (3) a damages class can be certified unless a large number of members lack standing; or (4) a class may be certified regardless of unnamed class members’standing unless there are other Rule 23 problems (e.g., the standing issues would result in a predominance of individualized issues). We predict that the Court will resolve this question in a forthcoming term. At oral argument, Justices Jackson, Sotomayor, Kagan, and Gorsuch raised questions about the practicalities of determining whether there are any uninjured class members at the time of class certification. On the other hand, Justice Kavanaugh dissented from the Court’s procedural dismissal, making his merits position clear: “Federal courts may not certify a damages class under Rule 23 when, as here, the proposed class includes both injured and uninjured class members.” He noted that overinflated classes can “coerce businesses 7 6 into costly settlements that they sometimes must reluctantly swallow rather than betting the company on the uncertainties of trial.” He relied on Rule 23 instead of Article III, finding that common questions would not predominate when the class consists of both injured and uninjured class members. Defendants may find his comments useful in jurisdictions where this question is unsettled or even when courts find no Article III issue with certifying a class. n
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