Blackstone’s Acquisition of Ancestry.com
By Zion Mercado
Blackstone is one of the largest investment firms in the world, boasting over $1 trillion in assets under management.[1] In December of 2020, Blackstone acquired Ancestry.com for a total enterprise value of $4.7 billion.[2] Ancestry is a genealogy service that compiles and stores DNA samples from customers and compares them to the DNA samples of individuals whose lineage can be traced back generations to certain parts of the world.[3] Within Ancestry’s privacy statement, Section 7 states that if Ancestry is acquired or transferred, they may share the personal information of its subscribers with the acquiring entity.[4] This provision was brought into controversy in Bridges v. Blackstone by a pair of plaintiffs representing a putative class consisting of anyone who had their DNA and personal information tested and compiled by Ancestry while residing in the State of Illinois.[5] The suit was brought under the Illinois Genetic Information Privacy Act (“GIPA”) which bars a person or company from “disclos[ing] the identity of any person upon whom a genetic test is performed or the results of a genetic test in a manner that permits identification of the subject of the test” without that person’s permission.[6] In addition to barring disclosure, GIPA may also bar third-party disclosure ,[7] which would then create a cause of action under the act against third parties who compel an entity to disclose genetic information such as the information compiled by Ancestry. In Bridges, it is clear from the opinion that there was virtually no evidence that Blackstone in any way compelled Ancestry to disclose genetic information.[8] However, the language of the statute seems to be unclear as to whether third parties who compel a holder of an individual’s genetic information can be held liable under GIPA. What does seem to be clear from the Seventh Circuit’s reading of the statute is that when an entity acquires another entity that holds sensitive personal information or genetic data, the mere acquisition itself is not proof of compelling disclosure within the meaning of the act.[9]
The exact language of GIPA that pertains to potential third party liability states that “[n]o person may disclose or be compelled to disclose [genetic information].”[10] In Bridges, Blackstone contended that the recipient of protected information could not be held liable under GIPA even if they compelled disclosure.[11] The plaintiffs, in their complaint, could not cite to any conduct on the behalf of Blackstone that would satisfy federal pleading standards for stating a claim that Blackstone compelled Ancestry to disclose information covered under GIPA.[12] This led the judge to disregard the broader issue surrounding GIPA’s language brought upon by Blackstone’s argument that an entity who receives genetic information cannot be held liable even if it compels disclosure of such information.[13] This issue is, in essence, one of statutory interpretation. Blackstone would have courts interpret the language reading “no person may . . . be compelled to disclose” as only granting a cause of action against a defendant who discloses genetic information, but only “because they were ‘compelled’ to do so.”[14] However, such an instance is already covered by the first part of the phrase “no person may disclose.”[15] Notably, the Bridges court did not address Blackstone’s interpretation of the statute since the claim failed on the merits, however, the judge writing the opinion did cite a lack of precedent on the matter.[16] I believe that the Illinois legislature did not intend to write a redundancy into the statute, and a more protective reading of the statute would extend liability to a third party who compels disclosure of genetic information. The very meaning of the word “compel” is “to drive or urge forcefully or irresistibly” or “to cause to do or occur by overwhelming pressure.”[17] This is an act that we as people (and hopefully state legislators as well) would presumedly want to limit, especially when what is being compelled is the disclosure of sensitive information, such as the results of a genetic test and the necessary personal information that accompanies the test. Again, in the plaintiff’s complaint, there was no evidence proffered indicating that Blackstone in any way compelled disclosure of genetic information from Ancestry.[18] However, if a case were to arise where such an occurrence did happen, we should hope that courts do not side with Blackstone’s interpretation. Although I agree with the notion that merely acquiring an entity who holds genetic or other sensitive information should not give rise to liability, and a mere recipient of such information should not be held liable when they do not compel the holder’s disclosure, an entity, especially an acquiring entity, should not be shielded from liability when they seek to pressure an entity into disclosing the personal information of individuals who have not consented to such disclosure.
[1] Blackstone’s Second Quarter 2023 Supplemental Financial Data, Blackstone (Jul. 20, 2023), at 16, https://s23.q4cdn.com/714267708/files/doc_financials/2023/q2/Blackstone2Q23 SupplementalFinancialData.pdf.
[2] Blackstone Completes Acquisition of Ancestry, Leading Online Family History Business, for $4.7 Billion, Blackstone (Dec. 4, 2020), https://www.blackstone.com/news/press/blackstone-completes-acquisition-of-ancestry-leading-online-family-history-business-for-4-7-billion/.
[3] Frequently Asked Questions, Ancestry.com, https://www.ancestry.com/c/dna/ancestry-dna-ethnicity-estimate-update?o_iid=110004&o_lid=110004&o_sch=Web+Property&_gl=1*ot1obs*_up*MQ..&gclid=5aadd61f 926315a4ec29b2e4c0d617e8&gclsrc=3p.ds#accordion-ev4Faq (last visited Sep. 8, 2023).
[4] Privacy Statement, Ancestry.com (Jan. 26, 2023), https://www.ancestry.com/c/legal/privacystatement.
[5] Amended Class Action Complaint at 8, Bridges v. Blackstone, No. 21-cv-1091-DWD, 2022 LEXIS (S.D. Ill. Jul. 8, 2022), 2022 WL 2643968, at 2
[6] Ill. Comp. Stat. Ann. 410/30 (LexisNexis 2022).
[7] Id.
[8] See Bridges, 66 F.4th at 689-90.
[9] Id. (“we cannot plausibly infer that a run-of-the-mill corporate acquisition, without more alleged about that transaction, results in a compulsory disclosure”).
[10] 410/30 (LexisNexis 2022).
[11] Bridges, 66 F.4th at 689.
[12] Id. at 690.
[13] Id. at 689.
[14] Brief of the Defendant-Appellee at 41, Bridges v. Blackstone, 66 F.4th 687 (7th Cir. 2023), (No. 22-2486)
[15] 410/30 (LexisNexis 2022).
[16] Bridges, 66 F.4th at 689 (Scudder, CJ.) (explaining that “[t]he dearth of Illinois precedent examining GIPA makes this inquiry all the more challenging”).
[17] Compel, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/compel (last visited Sep. 9, 2023).
[18] See supra note 11, at 690.
