[everforward]

They ought to be evaluated as if no TOS exists. Given the clear intent to defraud customers by misrepresenting the contract they were bound by, the claims should be evaluated under the TOS most favorable to the plaintiffs. The most favorable TOS is the one that's invalid because 23andMe didn't get anyone to actually agree, ergo the claims are evaluated as if no TOS exists.

This is an attempt to undermine consumer protection laws, and the government should treat it as a direct attack. Other companies are watching. The government needs to send a clear message that this won't be tolerated before it spreads, becomes the status quo, and leaves many consumers believing that they don't have any rights or protections.

The head of legal should also be disbarred under American Bar Association rule 1.2(d):

> (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

This reads as clear contract fraud in the factum [1]. Customers are told that they're bound by new contract terms, despite that 23andMe never got agreement, nor tried to get agreement, nor even know whether customers have read the new contract. I can't fathom any other reasonable interpretation of the situation. They created a fraudulent contract hoping to confuse other entrants to prior versions of the contract, and intend to benefit from that confusion. It seems clear to me. They are attempting to undermine the legal system, and the ABA needs to deal out swift punishment as one of the protectors of that system.

1: https://en.wikipedia.org/wiki/Fraud_in_the_factum

[blagie]

> ABA needs to deal out swift punishment as one of the protectors of that system.

This is part of the legal system. It shouldn't be, but it is. If you can toss a hundred issues the other party has to refute, you drive up legal costs to where litigation is no longer practical. The other side loses by default of not being able to afford litigation.

The ABA is, indeed, one of the protectors of the legal system, and have no vested interested in undermining it. The system means their constituents, lawyers, make more money.

Footnote: The mistake you made is that 23andme isn't undermining the legal system, but rather, justice. The two are not the same.

[everforward]

> This is part of the legal system. It shouldn't be, but it is. If you can toss a hundred issues the other party has to refute, you drive up legal costs to where litigation is no longer practical. The other side loses by default of not being able to afford litigation.

You can very much be slapped by the judge and/or the ABA for doing that. I think there's certainly an argument that the bounds on a frivolous claim/motion are too narrow and/or the penalties are too low, but there are mechanisms to prevent that. From Livingston v Adirondack Beverage Company (1998)[1], a frivolous claim/motion occurs when:

> (1) "the 'factual contentions are clearly baseless,' such as when allegations are the product of delusion or fantasy;" or (2) "the claim is 'based on an indisputably meritless legal theory.'"

From there, the court can dismiss the case or order the offending party to pay reasonable expenses to the defense. The court can also sanction the offending lawyer, penalties vary by jurisdiction. In Federal court, this is governed by Federal Rule of Civil Procedure 11. There aren't any hard limits on the court's power to sanction lawyers in there; it's whatever they think will deter the behavior. A quick search showed sanctions under Rule 11 reaching up into the millions, though commonly much lower.

> The ABA is, indeed, one of the protectors of the legal system, and have no vested interested in undermining it. The system means their constituents, lawyers, make more money.

I'm dubious that they are stupid enough to think that, and it does not line up with what I know from the lawyers I know/have known. The ABA has an incredibly privileged position that they can really only maintain through self-regulation. It's a private group that regulates who can represent people in public court; their position is tenuous to start with.

I think of late they may be over-emphasizing a lawyer's duty to vigorously defend their client to the detriment of some of the other ethical rules. I can see how they get there; of course as a defendant you want your lawyer to do everything to protect you, even if it might be a tad shady.

Perhaps the courts need to fire a warning shot that the ABA needs to course correct. I truly doubt the ABA is stupid enough to try to buck the judicial system. They are and always have been subservient to the courts. Watch a lawyer get chewed out by a judge sometime; they just have to sit there, take it, and say "yes, your honor" at the right time (god forbid you forget the honorific while getting chewed out).

> Footnote: The mistake you made is that 23andme isn't undermining the legal system, but rather, justice. The two are not the same.

The legal system purports to be an implementation of justice. The two are not separable, at least not without the legal system committing ritual suicide by telling the public that the two are separate. I'm not arguing that our legal system is just, but rather that they purport to be and that external appearance is integral to their legitimacy.

Openly acknowledging that the legal system isn't interested in justice would be a huge blow to their public support, which is effectively the only power they have. A populace that doesn't believe the legal system is just might as well just hand those powers over to the executive. It won't be just either, but it'll be swifter.

1: https://caselaw.findlaw.com/court/us-2nd-circuit/1286266.htm...

[blagie]

> You can very much be slapped by the judge and/or the ABA for doing that.

You can. The bar is very, very high. It's adequate to have a fig leaf of plausibility.

> In Federal court, this is governed by Federal Rule of Civil Procedure 11.

I am most concerned about lower courts, and especially the lowest of the low. Go into a family court at some point, and see the lawyers lying and throwing around allegations they know to be false.

> Perhaps the courts need to fire a warning shot that the ABA needs to course correct

They very much need to do this.

> I truly doubt the ABA is stupid enough to try to buck the judicial system

I think there is a mistake here:

1) Judges are mostly lawyers and in ABA culture. It's not clear they'd want to buck the system.

2) There is no plausible alternative. The populace won't hand those powers over to the executive, since we have a constitution (and we're all indoctrinated into separation of powers since little kids, and even so, it's a good idea even with corruption in the judicial). The ABA's position is secure. For the ABA (not an individual lawyer) to be scared, there would need to be a plausible threat.

3) Being corrupt is the opposite of "openly acknowledging." By far the best thing we can do to address corruption is to openly acknowledge it, and then when things don't improve, to point fingers at the bottlenecks.

[bertil]

I’m curious if their lawyer has a defense in saying that they advised against it, but were told to try it anyway.

I’m even more curious if the change of ToS alone could be grounds for a trial, even a class action—making the risk not even worth the try.

Even harder to swallow: discover that the lawyers using the class action got hold of the data from the leak and used that in their marketing.

[underlipton]

There should a (modern version of a) letter-writing campaign to pressure the government to take this seriously. The literal core of one's being is on the line.