Commercial Litigation and Arbitration

Judicial Notice of Internet Evidence — Wayback Machine

Tompkins v. 23andMe, Inc.,2014 U.S. Dist. LEXIS 88068 (N.D. Cal. June 25, 2014):

This case involves putative class action claims related to Defendant 23andMe, Inc.'s ("23andMe") advertising and marketing of its Personal Genome Service. 23andMe filed an Omnibus Motion to Compel Arbitration and to Dismiss or Alternatively Stay the Action in Favor of Arbitration. ECF Nos. 69, 69-1 ("Mot."). Plaintiffs oppose the Motion. ECF No. 103 ("Opp'n"). 23andMe filed a Reply in support of the Motion. ECF No. 104 ("Reply").



A. Factual Allegations

1. Personal Genome Service ("PGS") and the FDA Warning Letter

23andMe is a personal genetics company founded in 2006 that offers to provide customers hereditary information from a genetic sample. See ECF No. 23-1. The product at issue in the instant case is 23andMe's Personal Genome Service ("PGS"). PGS is a service that consists of a DNA saliva collection kit ("DNA kit") and DNA test results with certain genetic information derived from a customer's saliva sample. To use PGS, customers first purchase DNA kits online at 23andMe's website, The price of a DNA kit is currently $99, not including shipping fees. Upon purchase, 23andMe ships the DNA kit to the customer with a pre-addressed return box and instructions on how to return a saliva sample to 23andMe. Id. 23andMe then receives the saliva sample and has the DNA tested at a certified laboratory. When 23andMe receives the DNA results from the laboratory, 23andMe posts the customer's DNA information online to the customer's personal genome profile. The customer receives an e-mail notification when DNA results are ready to view. Id.

1   The parties do not dispute that the key portions of the website have not changed since the relevant times when Plaintiffs allegedly performed the transactions at issue. 23andMe relies on excerpts from a February 2014 version of the website (see ECF No. 70-9), while Plaintiffs use excerpts dated April 2014 (see ECF No. 103-2). However, the Court takes judicial notice of the Internet Archive ( version of 23andMe's website as of November 20, 2013, the full version of the website archived right before the FDA warning letter of November 22, 2013 (discussed below). The Court applies the doctrine of incorporation by reference to the instant case. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) ("[D]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss."); see also Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (taking judicial notice of linked webpages because "a computer user necessarily views web pages in the context of the links through which the user accessed those pages").

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