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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-23278-COOKE/GOODMAN

UNITED STATES OF AMERICA,

Plaintiff, 

v.

REAL PROPERTY LOCATED AT 7505 AND 7171

FOREST LANE, DALLAS, TEXAS 75230 et al.,

Defendants,

____________________________________________/

ORDER

THIS MATTER is before the Court on claimants’ motion to dismiss, ECF No. 78, 

and the government’s motion to strike, ECF No. 79. For the reasons stated below, the Court 

will DENY the motion to strike, and ORDER the government to respond to the motion to 

dismiss, ECF No. 78.1

FACTUAL BACKGROUND

This case concerns four consolidated in rem civil forfeiture actions brought against 

various defendant assets. All four actions stem from government allegations that two 

Ukrainian billionaires, Ihor Kolomoisky and Gennadiy Boholiubov, defrauded 

PrivatBank—one of the largest banks in Ukraine—over several years in the 2000s and 2010s.

See generally ECF No. 1; ECF No. 1 (Case No. 20-cv-23279); ECF No. 1 (Case No. 20-cv25313); ECF No. 1 (Case No. 22-cv-20238).

2 According to the government, Kolomoisky and 

Boholiubov each owned more than 40% shares in PrivatBank and used their influence 

within the bank to fraudulently obtain billions of dollars in loans. 

1 Also pending before the Court is the claimants’ motion for a hearing. ECF No. 83. The 

Court will DENY claimants’ motion for a hearing as moot. Instead, the Court will order a 

briefing schedule as stated below, and set a hearing on the motion to dismiss at a later date.

2 When citing to the dockets in the member cases prior to consolidation with the abovecaptioned action the Court will include the case number of the member action in 

parentheticals. When citing to the docket in the instant action (either before or after 

consolidation) the Court shall omit the parentheticals.

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The government further alleges that these funds were channeled through a series of 

entities in Europe and the United States, and eventually used to purchase the defendant 

assets in these four consolidated actions. According to the government, the purchase of the 

defendant assets was coordinated by two Miami-based businessmen—Mordechai Korf and 

Uriel Laber—who worked for Kolomoisky and Boholiubov. Korf and Laber created, 

owned, and managed a series of companies, which in turn owned the defendant assets.

The motions at hand concern the action against the Kentucky asset, which the 

government defines as a 95% interest in PNC Corporate Plaza Holdings, LLC (“PNC”)

owned by CBD 500, LLC (“CBD 500”). ECF No. 1 (Case No. 20-cv-23279) ¶ 3. The

government “seeks forfeiture of all right to and interest in PNC [held by CBD 500, 

including] any interest held in or secured by the real property and appurtenances located at 

500 West Jefferson Street” in Louisville, Kentucky—as well as related rights to collect and 

receive income from proceeds invested in PNC. Id.

Claimants in the action against the Kentucky asset (collectively “the Kentucky 

claimants”) include Miami businessmen Korf and Laber, as well as several related 

companies: First, CBD 500 filed a claim as the owner of the 95% interest in PNC that the 

government seeks to forfeit. ECF No. 18 (Case No. 20-cv-23279) at 1. Second, Optima CBD 

Investments, LLC (“Optima CBD”) filed a claim as the 100% owner of CBD 500. ECF No. 

19 (Case No. 20-cv-23279) at 1. Finally, Korf and Laber each filed claims as 50% owners of 

Optima CBD. ECF No. 20 (Case No. 20-cv-23279) at 1; ECF No. 17 (Case No. 20-cv23279) at 1.

PROCEDURAL HISTORY

The case against the Kentucky asset was filed on August 6, 2020. ECF No. 1 (Case 

No. 20-cv-23279). On August 14, 2020, the Court entered an ex parte restraining order to 

maintain and preserve the asset. ECF No. 5 (Case No. 20-cv-23279). The order enjoined all 

persons and entities with an interest in the Kentucky asset from taking any actions that 

could affect the value of the asset, without government approval. Id. at 3. On February 24, 

2021, the Court consolidated the case against the Kentucky asset with two other actions, 

including the above-captioned case. ECF No. 48.3

3 A fourth action has since been consolidated with this matter. See ECF No. 112 (order 

consolidating cases).

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On May 13, 2021, after holding a hearing in this matter, the Court ordered the 

Kentucky claimants to respond to the government’s outstanding special interrogatories. See 

ECF No. 75. The Court also ordered the claimants to refile their previously filed motion to 

dismiss in the now-consolidated action.

On May 24, 2021, the Kentucky claimants filed their motion to dismiss. ECF No. 78. 

Claimants argue that the doctrine of international comity warrants dismissing this action. 

According to claimants, the allegedly criminal acts underlying this forfeiture action occurred

in Ukraine, and therefore the Court should refrain from exercising jurisdiction. Additionally, 

the Kentucky claimants argue the complaint fails to state a claim because the Kentucky asset

was repurchased using funds that the United States does not allege were tainted.

On May 27, 2021, in lieu of responding to the motion to dismiss, the government 

filed a motion to strike certain claimants from this action. ECF No. 79. In its motion the 

government argues that before it responds to the claimants’ motion, the Court must resolve 

threshold standing issues. According to the government, the Court should first strike the 

claims of Optima CBD, Korf, and Laber because none of these claimants have a sufficient

interest in the Kentucky asset. 4 The Kentucky claimants oppose this motion, ECF No. 81,

and the motion is otherwise ripe for adjudication.

LEGAL STANDARDS

When the government moves to strike a claim for lack of standing, a claimant has

the burden of establishing standing. Fed. R. Civ. P., Supp. R. G(8)(c) [hereinafter “Supp. 

R.”]; United States v. ADT Sec. Servs., Inc., 522 F. App’x 480, 491 (11th Cir. 2013) (per 

curiam). “A claimant must satisfy [. . .] the requirements of Article III [. . .] to contest a 

forfeiture action.” United States v. $114,031.00 in U.S. Currency, 284 F. App’x 754, 755 (11th 

Cir. 2008) (per curiam) (citing United States v. $38,000.00 Dollars in U.S. Currency, 816 F.2d 

1538, 1543–44 (11th Cir. 1987)).

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To satisfy Article III standing, the claimant must show “an injury, not ownership.”

Via Mat Int’l S. Am. Ltd. v. United States, 446 F.3d 1258, 1262 (11th Cir. 2006). In a civil 

4 The government does not dispute that, as the owner of the asset, CBD 500 is a rightful 

claimant in this action.

5 A claimant must also establish statutory standing. See $114,031.00, 284 F. App’x at 755. 

However, “[t]he Government is not challenging the claimants’ statutory standing at this 

time.” ECF No. 79 at 4 n.2.

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forfeiture action, “non-owners [. . .] can also have injuries resulting from the seizure of 

property that are sufficient to establish standing.” Via Mat, 446 F.3d at 1262. “Substantial 

economic harm is plainly the type of injury for which parties may seek redress in federal 

court.” Id. at 1263. To determine whether sufficient harm has occurred to establish an 

Article III injury, courts evaluate the interests of a claimant in the forfeited property, and 

assess how the forfeiture affects those interests. See id. at 1262–63. “Such interests are 

evaluated under state law; thereafter, federal law determines whether those interests may be 

forfeited.” ADT, 522 F. App’x at 489 (citing United States v. Fleet, 498 F.3d 1225, 1231 (11th 

Cir. 2007)).

For a claimant’s injury to be sufficient, it must be concrete and particularized, as well 

as actual or imminent. Support Working Animals, Inc. v. Governor of Fla., 8 F.4th 1198, 1201 

(11th Cir. 2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Additionally, the 

claimant must show a “causal connection” between the injury and the claim asserted. Id.

(citation omitted). Finally, the claimant must show that it is “likely as opposed to merely 

speculative, that the injury will be redressed by a favorable decision.” Id. (quoting Lujan, 504 

U.S. at 560).

ANALYSIS

The Court proceeds in two parts. First, it summarizes the nature of claimants’

interests, which the parties do not dispute is controlled by Delaware law and the operating 

agreements entered into between the various claimants. Second, the Court evaluates the 

arguments and relevant law presented by the parties as to whether these interests are 

sufficient for standing purposes. Ultimately, the Court finds there is no binding legal 

authority on the issue presented. However, following persuasive authority form the Fifth and 

Eighth Circuits, the Court finds claimants have sufficiently established standing at this stage.

For these reasons the Court will DENY the motion to strike and ORDER that the 

government respond to the pending motion to dismiss.

I. The nature of claimants’ interests in the subject property is controlled by 

Delaware law and the relevant operating agreements.

The parties agree that claimants Optima CBD, Korf, and Laber do not have a direct

ownership in the property subject to this forfeiture action (“the subject property”). Instead,

claimants aver their interests in the subject property arise under Delaware law and two 

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operating agreements: (1) the operating agreement for CBD 500 and (2) the operating 

agreement for Optima CBD. See ECF No. 81 at 7–11.

First, claimants explain that Optima CBD is the sole member of CBD 500. Pursuant 

to the operating agreement for CBD 500, Optima CBD has a right to an allocation of profits 

and losses. ECF No. 81-2 at 6 (copy of company agreement for CBD 500). Additionally,

Optima CBD has the right to take distributions of capital from CBD 500 “at the times and 

in the aggregate amounts [it] determine[s.]” Id. at 7.

Second, through the Optima CBD operating agreement, Korf and Laber also assert 

an indirect interest in the property subject to this forfeiture action. Korf and Laber are the

sole members of Optima CBD, each with a 50% ownership interest in Optima CBD. ECF 

No. 81-3 at 10, 29 (copy of the Optima CBD operating agreement). As members, they are 

entitled to distributions of funds from the Optima CBD. Id. at 12. Additionally, Korf is also 

the manager of Optima CBD, id. at 11, and as such he may authorize distributions of funds

from Optima CBD to its members, id. at 12, 13.

The government does not contest that the claimants have these indirect interests in 

the subject property but argues that they are too attenuated to establish standing under 

Article III, as further explained below.

II. The claimants’ interests are sufficient to establish Article III standing.

The Kentucky claimants acknowledge that their interests fall short of direct 

ownership in the subject property. However, they argue that because Optima CBD has a 

right to take distributions from CBD 500—and this forfeiture action interferes with that 

right—they have sufficiently asserted Article III standing. See ECF No. 81 at 9. Moreover,

they argue that even without said distribution rights, under Delaware law, an interest in a 

limited liability company (such as the one Optima CBD asserts here) is personal property.

And because the government’s forfeiture action interferes with Optima CBD’s rights to its 

personal property, Optima CBD has suffered an injury sufficient for Article III standing. Id. 

at 10–11. Similarly, the Kentucky claimants assert that—as owners of Optima CBD—Korf 

and Laber have rights under the Optima CBD operating agreement that would be harmed

by this forfeiture action. Id. at 11–12.

The government argues that Optima CBD, Korf, and Laber are not the owners of the 

subject asset, and whatever indirect interests they assert are too attenuated to establish 

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standing. According to the government, under the doctrine of corporate distinctiveness, it is 

settled that a shareholder—even in the case of closely held companies owned by a single 

individual—does not have standing to contest the forfeiture of an asset. ECF No. 79 at 7

(citing United States v. All Assets Held in Acct. No. XXXXXXXX in name of Doraville Properties 

Corp., 299 F. Supp. 3d 121, 136 (D.D.C. 2018) (collecting cases)). Drawing an analogy to 

these shareholder cases, the government asks the Court to find Optima CBD, Korf, and 

Laber lack Article III standing here. After all, the operating agreements make clear that 

CBD 500 is a distinct legal entity from the other claimants—and it is undisputed the that 

Optima CBD, Korf, and Laber, have no direct ownership right in the subject asset. ECF No. 

79 at 8.

Having reviewed the parties’ briefs, the Court finds the law controlling this dispute is 

unsettled. As a threshold matter, the Court notes that neither party has pointed to binding 

circuit law, and the Court has found none. While the government is right to note that courts 

have often found that shareholders have no Article III standing in a forfeiture action, at least 

two circuit courts have held to the contrary. See United States v. Eleven Million Seventy-One 

Thousand One Hundred & Eighty-Eight Dollars & Sixty-Four Cents ($11,071,188.64) in United 

States Currency, 825 F.3d 365 (8th Cir. 2016); United States v. M/Y Galactica Star, 13 F.4th 448

(5th Cir. 2021).

6 The Court finds the reasoning in these cases persuasive. Article III standing 

requires injury resulting from the forfeiture, not ownership of the subject property. 

Claimants Optima CBD, Korf, and Laber, have sufficiently demonstrated that forfeiture of 

the subject property would harm them, given their property rights and legal interests under 

the operating agreements and Delaware law. Accordingly, the Court finds they have made 

out an injury under Article III sufficient to survive the motion to strike. 

CONCLUSION

For the foregoing reasons, the Court ORDERS AND AJUDGES as follows:

1. The government’s motion to strike, ECF No. 79, is DENIED.

2. The government shall respond to the Kentucky claimants’ motion to dismiss, ECF 

No. 78, within 14 days of this order. The Kentucky claimants will have 7 days from 

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In M/Y Galactica Star the Fifth Circuit held that although a shareholder had Article III 

standing, they lacked prudential standing under the forfeiture statute. 13 F.4th at 455. The 

government does not make a prudential standing argument here, and so the Court sees no 

reason to address prudential standing at this stage.

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the filing of the government’s response to file a reply.

3. The Court will DEFER judgment on the motion to dismiss, ECF No. 78, pending 

the conclusion of the briefing schedule. 

4. The Court will DENY as moot, the motion for hearing, ECF No. 83.

DONE and ORDERED in chambers at Miami, Florida, this 28th day of March 2022.

Copies furnished to: 

Jonathan Goodman, U.S. Magistrate Judge 

Counsel of record

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