In a vicious battle that began over tennis courts, a Florida judge declares genetic material to be a property right.
At a press conference two weeks ago, Donald Trump called his friend, Ike Perlmutter, “one of the great men of business.” That was before the Marvel chairman made some legal history.
On Monday, a Florida state judge permitted Perlmutter and his wife, Laura, to move forward in a trailblazing case over the way their DNA was surreptitiously gathered at a deposition on Feb. 27, 2013. In advancing a conversion claim, circuit judge Meenu Sasser wrote that no binding authority has ever definitively answered the question of whether genetic material such as DNA constitutes “property.” Now, the reclusive 73-year-old — who President Trump hopes will play a role in the Department of Veterans Affairs — is being given the opportunity to press various claims over allegedly stolen DNA.
“The Perlmutters plainly retain important intangible rights to their genetic information,” wrote Sasser, who analyzed a handful of privacy cases around the nation and one conversion case in Iowa from fifteen years ago. “The authority discussed above makes this clear— at the very least, one possesses important privacy interests in such information. The wrongful dominion of this interest is an intrusion that would not necessarily be remedied adequately by restitution… [T]he Court finds an extension of conversion’s definition of property to one’s intangible rights in his or her genetic information is therefore appropriate.”
Perlmutter is facing off against Harold Peerenboom, a Toronto businessman who founded the multinational executive search firm Mandrake Management. Both live at Sloan’s Curve, a waterfront Palm Beach complex that became the scene of a nasty billionaires’ fight over tennis courts.
Peerenboom is suing Perlmutter for allegedly orchestrating hate mailings — to other Sloan’s Curve residents, to business associates, to more than a thousand inmates in prisons across Florida and Ontario — that portrayed the Canadian as an anti-Semite, a sex offender and more.
During an earlier defamation case over the tennis courts, Peerenboom and his ex-attorney William Douberley forced the appearance of the Perlmutters at a deposition. When the Marvel chairman showed up to be interviewed at a West Palm Beach law firm, he had no idea that it was part of a plot to collect his DNA and compare it with the hate mail. Peerenboom and a private investigator hired Speckin Laboratories, a testing facility, whose employee showed up at the deposition with “special paper” meant to collect DNA. They also took plastic water bottles and a bottle cap left at the deposition by the Perlmutters.
In March 2016, when Perlmutter’s feud with Peerenboom first gained widespread attention, New York Times reporter Andrew Ross Sorkin wrote, “Mr. Peerenboom’s legal team said that a private lab had found a direct DNA match on the outside of one of the sent envelopes, implicating Mr. Perlmutter’s wife, Laura.”
However, according to Perlmutter’s counterclaims against Peerenboom, Douberley, and others, Speckin sent the Perlmutters’ samples to another firm, Nevada-based Genquest DNA Laboratory, which came back with exculpatory results. Next, states the countersuit, Peerenboom and his reps “distorted the Genquest test results by subjecting them to reinterpretation by Speckin” and then “disseminated the distorted Speckin test result to law enforcement officials, prosecutors and the press to falsely implicate the Perlmutters in the alleged letter-writing campaign.”
Peerenboom’s attorney, Marc Kasowitz —who recently and ironically, was labeled by The Wall Street Journal as “Donald Trump’s go-to guy for his toughest legal battles” — insists that Trump’s friend Perlmutter is responsible for the nasty hate mail campaign. He also told THR in August there was no “DNA theft,” that the police were told what was happening and that they were fine with it, even suggesting they would use the results.
Despite arguments to the contrary on a motion to dismiss, Sasser has now rejected the notion that there’s no property right in genetic information. The judge also rules that the Perlmutters have properly stated causes of action for civil theft, abuse of process, defamation, publication of private facts, third-party spoilation of critical evidence and civil conspiracy. Along the way, Sasser rejects arguments that there was no criminal intent, that the defendants were immunized under litigation privilege and so forth.
The defendants have at least gotten the judge to dispense with a claim for intentional infliction of emotional distress.
“Taking the facts pleaded as true, there can be no doubt that the secret collection and misuse of a person’s genetic information is reprehensible conduct,” writes the judge. “Despite this, the Court does not find the allegations as pleaded arise to the extreme levels necessary to sustain an action for IIED. Simply stated, it is difficult to conclude the Perlmutters’ accusations rise to the same level of outrage generated by a case such as Liberty Mutual, where a party’s actions were literally a matter of life-and-death. Instead, the Court finds this case to be more akin to Williams or LeGrande—a situation involving unsavory facts and, at least as pleaded, intentional or malicious conduct made to embarrass and harass a plaintiff.”
Perlmutter is one step closer to a public trial with this development coming a few weeks after he was photographed for the first time in decades at a Trump event. Expect more revelations to come as Kasowitz has spent more than a year hunting for evidence including internal Marvel documents tying Perlmutter to the hate mailings. Kasowitz has also pursued inconsistencies in Perlmutter’s pleadings. For instance, although Perlmutter’s early legal papers called him the “CEO” of Marvel, and despite many news outlets who continue to refer to him as the chief executive of the company he sold to Disney in 2009 for $4 billion, Perlmutter filed a sworn statement in court earlier this month upon judicial order that acknowledges he’s merely the chairman.