United States District Court, District of Columbia
IN RE RESTRAINT OF TWENTY REAL PROPERTIES IN CALIFORNIA AND FLORIDA OWNED OR CONTROLLED BY FABRICE TOUIL OR RICHARD TOUIL
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
entities have filed motions to intervene, vacate restraining
orders, and, in one instance, dissolve a notice of lis
pendens, pertaining to properties in California and Florida.
ECF Nos. 27, 28, 29. Upon consideration of the pleadings,
relevant legal authorities, and the record as a whole, the
Court shall GRANT-IN-PART and DENY-IN-PART WITHOUT
PREJUDICE each of these motions. These entities
shall be permitted to intervene, but the Court shall not
vacate the restraining orders or dissolve the notice of lis
pendens at this time.
August 2, 2016, the United States moved ex parte for
enforcement of French restraining orders against twenty real
properties, including the four presently at issue: 1040
Biscayne Blvd., #3504, Miami, Florida 33132 (“1040
Biscayne”); 1100 West Avenue, #1026, Miami Beach,
Florida 33139 (“1100 West Avenue”); 1150 Kane
Concourse, #2FL, Bay Harbor, Florida 33154 (“1150 Kane
Concourse, #2FL”); and 2666 Hutton Drive, Beverly
Hills, California 90210 (“2666 Hutton”). A French
court had imposed those restraints “to preserve
specific property beneficially owned by Fabrice Touil or
Richard Touil that is subject to confiscation (forfeiture)
under French law in connection with a criminal investigation
into the Touil brothers and others suspected of money
laundering and other offenses in France.” Order, ECF
No. 3, at 1-2.
August 16, 2016, Judge Tanya S. Chutkan granted the United
States' motion in pertinent part, enforcing the French
restraining orders against these four properties and others.
Order, ECF No. 3, at 2-3. With respect to 1150 Kane
Concourse, #2FL, she excluded an annotation of this property
as “legally described as condominium no. 3”
because that description appeared in the United States'
proposed order but not in other materials, including the
French restraining order itself. Id. at 2-3 &
Chutkan also granted the United States' request to seal
proceedings in this matter but required that notice of the
Court's restraining order be given to “the suspects
and any affected person, including the nominal corporate
owners of record of the twenty properties.” Order, ECF
No. 4. Judge Chutkan lifted the seal on November 22, 2016,
upon learning from the United States that, inter
alia, “[b]oth Fabrice and Richard Touil have
actual notice that the French Restraining Orders are now in
force in the United States.” Ex Parte Mot. to Vacate
Sealing Order, ECF No. 15, at 2; see also Order, ECF
United States indicates that Fabrice Touil appealed the
French court's restraining orders as to 1040 Biscayne and
1100 West Avenue. U.S. Opp'n at 5 n.7. Those orders were
confirmed by the Paris Court of Appeals. Id. at 5.
While he evidently also appealed restraining orders as to
some other properties, the United States is unaware of any
appeals covering 1150 Kane Concourse, #2FL, or 2666 Hutton.
Resp. of the United States to Mot. to Vacate Restraining
Order Re: 1150 Kane Concourse, Bay Harbor Florida [sic], ECF
No. 38, at 7 n.8; Resp. of the United States to Mot. to
Vacate Restraining Order Re: 2666 Hutton Drive, Beverly
Hills, California, ECF No. 36, at 5 n.6. At least some of the
appeals he did file were abandoned. U.S. Opp'n at 5 &
n.7. “The United States is unaware of any successful
appeal as to any property.” Id. at 5 n.7.
Proposed Intervenors say nothing to the contrary.
October 4, 2018, Ocean 26 Holdings LLC and Mondrian 1026 LLC
together moved to intervene and vacate restraining orders as
to 1040 Biscayne and 1100 West Avenue, which they allege that
they respectively own. Proposed Intervenors Ocean 26 Holdings
LLC's and Mondrian 1026 LLC's Mot. to Intervene and
Vacate Restraining Order, ECF No. 27, at 1. Ocean Five Office
400 LLC separately filed a similar request with respect to
its alleged property, 1150 Kane Concourse, #2FL. Proposed
Intervenor Ocean Five Office 400 LLC's Mot. to Intervene,
Vacate the Restraining Order and Dissolve the Notice of Lis
Pendens, ECF No. 28, at 2. Real Estate 26 Investments LLC
likewise moved as to its alleged holding, 2666 Hutton.
Proposed Intervenor Real Estate 26 Investments LLC's Mot.
to Intervene and Vacate Restraining Order, ECF No. 29, at 1.
The Court shall refer to these four entities collectively as
“Proposed Intervenors” or simply
reassignment of the case to this Court, during briefing of
the pending motions, the Court permitted the United States to
file a surreply, which the Proposed Intervenors responded to
in supplemental replies. Although the Court did not grant
Proposed Intervenors permission to make these supplemental
filings, the Court shall consider the supplemental replies in
any case because they are helpful to the resolution of the
United States indicates that Fabrice Touil's trial
concluded on October 4, 2018, the date on which the Proposed
Intervenors filed their motions, and that a verdict in Mr.
Touil's case is expected on February 21, 2019. U.S.
Opp'n at 2-3; U.S. Surreply at 2. Proposed Intervenors do
not challenge either point.
briefing having concluded, the pending motions are now ripe
for resolution. The differences in briefing between the three
separate motions generally do not affect the disposition of
these motions. Accordingly, except where otherwise indicated,
the Court shall cite the parties' briefing of the motion
filed by Ocean 26 Holdings LLC and Mondrian 1026 LLC.
Motion to Intervene
24(a) of the Federal Rules of Civil Procedure governs
intervention as a matter of right. That provision provides,
in relevant part, that “[o]n timely motion, the court
must permit anyone to intervene who . . . claims an interest
relating to the property or transaction that is the subject
of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the
movant's ability to protect its interest, unless existing
parties adequately represent that interest.”
Fed.R.Civ.P. 24(a)(2). Consistent with this language, the
United States Court of Appeals for the District of Columbia
Circuit (the “D.C. Circuit”) has recognized four
criteria for intervention under Rule 24(a): “(1) the
application to intervene must be timely; (2) the applicant
must demonstrate a legally protected interest in the action;
(3) the action must threaten to impair that interest; and (4)
no party to the action can be an adequate representative of
the applicant's interests.” Karsner v.
Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008) (quoting
SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C.
Cir. 1998)) (internal quotation marks omitted).
addition to these four requirements, which emanate from the
text of Rule 24(a) itself, the Court understands that a
putative intervenor must generally establish constitutional
standing. Fund for Animals, Inc. v. Norton, 322 F.3d
728, 731-32 (D.C. Cir. 2003). “To establish standing
under Article III, a prospective intervenor - like any party
- must show: (1) injury-in-fact, (2) causation, and (3)
redressability.” Id. at 732-33 (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992); Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.
Cir. 2002)). With respect to the first prong of the Article
III standing inquiry, the putative intervenor must show
“an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical.” Deutsche ...