Hohimer Wealth Management LLC v. Dougan

• Court: District Court, S.D. New York
• Decided: September 19, 2024
• Docket: 1:23-cv-11138
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

PETER SCHUR, Individually and on Behalf of Other Credit Suisse Group AG ATI Bondholders, Plaintiff, 23 Civ. 10944 (CM) v. BRADY W. DOUGAN, et al., Defendants. | Usnc SDNY I ELECTRONICALLY FILED || EPP nnn i | HOHIMER WEALTH MANAGEMENT Hoare rman: 4/14/25 Credit Suisse Group AG AT1 Bondholders, Plaintiff, 23 Civ. 11138 (CM)

BRADY W. DOUGAN, et al., Defendants.

DECISION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS

McMahon, J.: . Plaintiffs Hohimer Wealth Management LLC (“Hohimer”) and Peter Schur (“Schur,” together, “Plaintiffs”), on behalf of themselves and all other similarly situated persons or entities

(the “Class”) who were holders of Credit Suisse U.S. Dollar denominated “Additional Tier One”

(“ATL”) bonds between January 12, 2023 and March 19, 2023, inclusive (the “Class Period”), cleared, recorded, or held by or through The Depository Trust Company or the U.S, depository for

Clearstream Banking 8.A. (“Clearstream”) or the Euroclear System (“Euroclear”), bring putative

class actions against Credit Suisse Group AG (“Credit Suisse” or the “Bank” or the “Company”)

executives and board members (the “Defendants”). According to Plaintiffs, the Defendants

negligently breached the statutory duties they owed to Credit Suisse’s ATI bondholders under

Swiss law. Defendants have moved to dismiss these actions on several grounds, including on the

basis of forum non conveniens. Earlier this year, I relied on the doctrine of forum non conveniens to dismiss similar Swiss

law claims involving overlapping allegations and individual defendants, See Star Colbert v.

Dougan, No. 23 Civ, 7297, 2024 WL 1197863 (S.D.N.Y. Mar. 20, 2024), Stevenson □□

Thornburgh, No. 23 Civ. 4458, 2024 WL 645187 (S.D.N.Y. Feb. 14, 2024). For many of the same

reasons, Defendants’ motions to dismiss are granted on that ground — without prejudice, so that

Plaintiffs can sue in Switzerland ~ and the Complaints are dismissed as against all Defendants.

BACKGROUND I. Parties a. Plaintiffs Plaintiff Hohimer Wealth Management LLC, a Washington Limited Liability company

with its principal place of business in Washington, held Credit Suisse ATI bonds during the Class

Period. Hohimer Compl. § 40. Plaintiff Peter Schur, a U.S. citizen currently residing in Florida,

purchased Credit Suisse ATI bonds in 2017 and held the bonds during the Class Period. Schur

Compl. € 40.!

| Asthe Schur and Hohimer Complaints are identical except for the identification of the Plaintiffs, citations herein to both Complaints will be singularly identified as “Compl.” See Opp. Memo, at I n.1.

Plaintiffs seek to represent a class consisting of “[alll holders of a beneficial interest in

Credit Suisse U.S. Dollar denominated ATI notes or Global Certificates between January 12,

2023, and March 19, 2023, inclusive, cleared, settled, recorded or held by or through The

Depository Trust Company (‘DTC’) in New York,” Compl. § 184, excluding the ‘Defendants; the

judicial officers, and their immediate family members; all Credit Suisse Employee CCA holders

and Court staff assigned to this case,” id. 187. Plaintiffs state that a significant portion of the

class members are U.S. citizens ~ “[t]he best available information indicates that approximately

44% of the par value of AT1 bonds were held by U.S. persons or institutions at 12/31/2022; more

than 19% in the New York metro area alone.” Id. § 186. Plaintiffs claim that Credit Suisse AT]

bondholders, including the proposed Class members, have suffered direct loss or damage due to

the Defendants’ negligent breach of the statutory duties they owed to Credit Suisse’s ATI

bondholders under Swiss law. /d. {1 197, 201.

b. Defendants Plaintiffs have named nine Defendants, all of whom are U.S. citizens who held various

positions within the worldwide Credit Suisse enterprise: Brady Dougan, Eric Varvel, James

Amine, Timothy O’Hara, David Miller, Brian Chin, Robert Shafir, Richard Thornburgh, and

Michael Klein. Jd. fj 41-49. Dougan was a member of Credit Suisse’s Executive Board and was Credit Suisse’s CEO

from May 2007 until his resignation in June 2015. id. 9 41, 176.

Varvel was the head of Credit Suisse’s Investment Banking (“IB”) Division from

September 2009 until October 2014, and Global Head of Asset Management within the Company’s

Wealth Management division from 2016 to March 2021. fd. 4 42.

Amine worked at Credit Suisse from 9005 until 2019; he was head or co-head of

Investment Banking from October 2014 until November 2019. /d. 43.

O’Hara was co-head of Investment Banking from October 2014 until November 2015, and

head of Global Markets until September 2016. Id. § 44. Miller was head of Investment Banking from November 2019 until August 2020, after

which he remained at Credit Suisse in senior Investment Banking roles. /d. § 45.

Chin was head of Global Markets from September 2016 until August 2020, and head of

Investment Banking from August 2020 until he was fired in March 2021. Id. { 46.

Shafir became a member of Credit Suisse’s Executive Board in 2007, and was the CEO of

the Americas region from 2007 to 2010, Id. 4 47. He served as the CEO of Asset Management

from 2008 to 2012, and was the joint head of Private Banking and Wealth Management and the

Regional CEO for the Americas from 2012 until he left Credit Suisse in 2015. Ta.

Thornburgh was a member of Credit Suisse’s Board of Directors from 2006 until 2016,

Vice Chairman of the Board from 4014 until 2016, a member of the Risk Committee of the Board

from 2006 until 2016, and Chair of the Risk Committee from 2009 until 2016. Jd. 7 48.

Finally, Klein joined Credit Suisse’s Board of Directors in 2018, and left the Board in

October 2022. Id. 49. He served on the Board’s Risk Committee from 2018 until 2021. Td. In

February 2023, the Company announced that Klein would join the Executive Board, had been

appointed CEO of Banking and of the Americas, and had been designated CEO of CS First

Boston.’ Id.

2 The Court takes judicial notice of Credit Suisse’s press release announcing the appointment of Klein as Chief Executive Officer of Banking and of the Americas as well as CEO designate of CS First Boston. See Press Release, Credit Suisse, Credit Suisse Group announces the acquisition of The Klein Group LLC, the appointment of Michael Klein as Chief Executive Officer of Banking and of the Americas as well as CEO designate of CS First Boston (Feb, 9, 2023), □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ klein-group-Ile-appointment-michael-klein-estb-202302,hun! (hitps://perma.cc/YTR5-YT7X]; see also In re Rank of America AiG. Disclosure Securities Litig., 980 F.Supp.2d 564, 570 (S.B.N.Y, 2013).

As the reader will readily appreciate, all of the Defendants except Klein were long gone

from Credit Suisse - most of them for many years — when the Bank imploded in the spring of

2023, Plaintiffs assert that the Defendants were collectively responsible for Credit Suisse’s

financial controls and instilling “a [cJulture of [rJesponsibility, {ajccountability, and [rjespect for

[clontrols.” Jd. §§ 176-78. While in office (which is to say, until 2015), Dougan had duties

encompassing the entire enterprise and was responsible for managing Credit Suisse as a whole. Id.

41, 176. Varvel, Amine, O’Hara, Miller, and Chin were responsible for managing the IB

division during their tenures as heads of the IB division (which ended in 2014, 2019, 2015, 2020,

and 2021, respectively). Jd. 42-46, 177. Shafir was responsible for managing the Asset

Management Division until 2012, and the Private Banking and Wealth Management Division until

2015. Id. (47, 178. Plaintiffs claim that instead of fulfilling their duties, Dougan, Varvel, Amine, O’ Hara, Miller, Chin, and Shafir: “materially contributed to Credit Suisse’s toxic culture of excessive risk-

taking, prioritizing short-term profits over long-term stability, permitting compensation structures

that incentivized imprudent risk-taking, and not requiring diligent compliance and risk

management;” and “breached [their] duties by failing repeatedly in each of [those] areas.” Id. □□

176-78. According to Plaintiffs, Dougan, Varvel, Amine, O’Hara, Miller, Chin, and Shafir’s “acts

and omissions in breach of their duties render them responsible — and legally liable — for the

misconduct, malfeasance, and managerial negligence described [in the Complaint] and for the loss

of trust that brought Credit Suisse down and caused the AT1 bonds to be wiped out.” /d.

Plaintiffs state that, as members of the Company’s Board of Directors and the Board’s Risk

Committee, Thornburgh (until 2016) and Klein (from 2018 until 2022) had duties encompassing

the entire enterprise during the time each was in office; had responsibility for oversight and

supervision of those they appointed to manage Credit Suisse’s business, including but not limited

to, members of the Executive Board; had responsibility for financial controls; and had

responsibility for instilling “a [clulture of [rJesponsibility, [alecountability, and [rjespect for

[clontrols.” Jd, {| 48-49, 179. Plaintiffs assert that Thornburgh and Klein “breached their duties

by failing repeatedly in each of [those] areas” and “(t}heir acts and omissions in breach of their

duties render them responsible — and legally liable — for the misconduct, malfeasance, and

managerial negligence described [in the Complaint] and for the loss of trust that brought Credit

Suisse down and caused the AT! bonds to be wiped out.” Jd.

Plaintiffs describe their claims as “aris[ing] from each Defendant's failures in connection

with risk management, and more specifically, the bad risk culture he instilled then failed to fix.”

Id. 4 180. Allegedly, “[t}he cumulative weight of these failures resulted in the ‘loss of trust that

had accumulated over the years” leading to the collapse of Credit Suisse.” Jd. { 181, Plaintiffs

assert that, based on the Defendants’ roles as “Directors and senior managers” of Credit Suisse, a

Swiss stock company that was governed by Swiss statutory law, the Defendants — “(wherever

located” — were bound by and owed Credit Suisse, its shareholders, its creditors, and its

bondholders certain statutory duties under Articles 716a, 716b, and 717 of the Swiss Code of

Obligations and are liable for their negligent breaches of those duties pursuant to Articles 754 and

759 of the Swiss Code of Obligations. /d. {if 24, 174. Plaintiffs contend that ‘Defendants’ negligent

breaches of their statutory duties brought the bank to that cliffs edge from which there was no

return.” Jd. | 25.

I. Factual Allegations The facts below are drawn from the allegations in the Amended Complaints (the

“Complaints”). The well-pleaded facts are presumed to be true for purposes of the motions to

dismiss. The collectively pleaded facts (ie., the allegations against “Defendants” collectively)

cannot necessarily be presumed true, especially when Defendants are alleged to have either done

or failed to do things after they were no longer affiliated with Credit Suisse — in other words, those

allegations are not, on their face, “well-pleaded.” a, Credit Suisse’s ATI Bonds AT1 bonds are hybrid securities issued by banks — in these cases, by Credit Suisse — that

meet the criteria for Tier 1 (or “going concern”) regulatory capital. /d. {| 70. AT1 bonds are

“subordinated to depositors, general creditors, and subordinated debt of the bank, meaning they

are at the bottom of the bank’s capital structure, sitting (in general) just above equity.” Id.

(emphasis in original). AT1 bonds “are designed to ensure that bondholders bear losses before

equity holders in certain circumstances,” id. □ 71; “in all events, they are subordinated to all

creditor claims, meaning in a bankruptcy or resolution scenario, the AT1 bonds are likely to be

wiped out entirely (as would have happened in the specific case of Credit Suisse).” /d.

AT1 bonds “have a ‘principal loss absorption’ feature whereby they are either (depending

on the specific terms of issue) (i) converted to common shares at a pre-set trigger point or (ii)

written down to allocate losses to the instruments at the pre-set trigger point. The conversion or

write-down is triggered when the bank’s Common Equity Tier 1 (CET1) ratio drops below a

specified point.” fd. J 70 (emphasis in original). But “the bank’s regulator can under certain

circumstances trigger a conversion or write-down without regard to whether the pre-set trigger

points have been crossed.” Td.

According to Plaintiff, due to the “peculiar nature and characteristics of the Credit Suisse

AT1 bonds,” “unless and until the Bank came under financial distress severe enough to threaten

its continued independent existence, AT] holders continued to be paid, and the market valued the

bonds at or near par (adjusted for interest rate risk).” id. 4 72. Thus, while Credit Suisse faced

multiple scandals and endured extensive losses over the years, these adverse events “had little

apparent and immediate impact on AT1 bond pricing — or risk to the ATI bonds, as assessed by

the market — even as these scandals and losses caused immediate drops in the stock price.” Jd.

addition to AT1 bonds, Credit Suisse had another set of securities it initially treated as

Tier 1 Bonds for regulatory purposes: Contingent Capital Awards (“CCAs”), or Credit Suisse

Employee AT! bonds. id. {| 96, The difference between AT1 Bonds and CCAs is that ATIs are

offered to outside creditors, like Plaintiffs here, while CCAs were awarded to Credit Suisse

executives and board members as bonuses, deferred compensation, or retentions payments. /d. |

167. Plaintiffs estimate that there are $400 million to $700 million in granted or authorized Tier |

CCA instruments for executives and board members, some of which are owned or intended for the

named Defendants in these actions. fd. b. Credit Suisse’s Gradual Decline Credit Suisse, a 167-year-old international banking and financial services institution,

ceased to exist as an independent entity in mid-March 2023, id. 3. With its collapse came the

cancellation of over $17 billion of AT1 bonds issued by the Bank. Ja. Plaintiffs place the blame for the destruction of Credit Suisse on its New York IB Division,

which allegedly was the “primary source” of the Bank’s “most significant publicly reported scandals, and illegal and unethical conduct.” /d. Jf 4, 74, The IB Division, according to Plaintiffs,

had an “appetite for self-dealing and risk-taking,” “was the principal source of the toxic culture

that valued short-term gain over long-term trust and led to countless scandals and billions of dollars

of U.S. government penalties — and [Plaintiffs] and the other Class members’ losses,” and “took

voracious and ultimately catastrophic risks that culminated in Credit Suisse’s collapse — risks that

were allowed to build due to the persistent failure of Defendants to rein in their self-interested

gambling and properly observe basic risk management and adhere to a modicum of appropriate

risk culture.” Jd. 4, 74-75. Plaintiffs assert that “The ‘arsonists’ in charge of Credit Suisse’s risk culture — New York-

based members of the Executive Board, especially those leading (among others) IB and the risk

fanction — caused its ultimate death spiral and collapse.” Jd. 4 85. In the Complaints, Plaintiffs

craft a historical narrative, beginning with Dougan’s promotion to Credit Suisse’s CEO in 2007,

id. { 86, detailing not only the erowth of the IB Division's — and “Dougan’s disciples” — power

and influence, but also the supposed connection between the “toxic New York culture” and the

oceurrence of “a series of high-profile legal and financial disasters during, or arising from, the

Dougan Era.” Id. FJ 86-132. These “high profile legal and financial disasters,” id. 497, include:

e “[T]he stew of greed, dishonesty, and managerial negligence flowing from the

Asset-Backed Securities (‘ABS’) created and sold by the Structured Credit

business within IB during 2005-2007,” id. { 98, and the resulting more than $9

billion in fines and settlements Credit Suisse paid for its role in structuring and

selling the securities, id. § 100;

© guilty plea in 2013 by a senior Credit Suisse Managing Director for mismarking

ABS securities, id. J 101; © A guilty plea in 2014 by Credit Suisse for criminal conspiracy to aid and assist

US. taxpayers in filing false returns and a related $2.6 billion fine, ie. 4 103;

e A $135 million fine from the New York State Department of Financial Services to

Credit Suisse for violating New York banking laws between 2008 and 2015 in

connection with manipulating and rigging the foreign exchange currency market,

id. 4 105; and e The Mozambique Tuna Boat Scandal, which consisted of a series of corrupt and

illegal transactions by Credit Suisse’s New York IB Group between 2012 and 2016

and resulted in Credit Suisse and several of its investment bankers entering guilty

pleas in the Eastern District of New York in 2019 and 2021,° $547 million in

penalties, and the imposition of a monitorship over the Bank, id. { 100.

Plaintiffs allege that these scandals and losses “were emblematic of deeper and broader

problems at Credit Suisse — a cascade of individual acts enabled by a toxic culture, created by top

leadership and particularly the top IB leadership in New York - that was progressively resulting

in loss of trust.” Jd. § 107. Plaintiffs assert that until the end of their respective tenures at Credit Suisse, Defendants

Dougan and Shafir - both of whom left Credit Suisse well prior to the beginning of the Class

Period — “continued to foster the toxic risk culture and to enter into problematic transactions,” □□□□□

by doing business with Archegos Capital Management (“Archegos”), “that eventually contributed

to the bank’s collapse.” Jd. | 108, 132. After non-Defendant Tidjane Thiam became CEO of

Credit Suisse in July 2015, id. | 110, he “was forced during his tenure to deal with a number of

what he called “legacy issues,” é.e., issues that he had inherited from the Dougan years,” id. | 115,

3 The Court takes judicial notice of when the Company and its officials entered guilty pleas in the Eastern District of New York in connection with the Mozambique Tuna Boat Scandal. See Press Release, Office of Public Affairs, U.S. Dept. of Justice, Credit Suisse Resolves Fraudulent Mozambique Loan Case in $547 Million Coordinated Global Resolution (Oct. 19, 2021), https:/Avww.justice.pov/opa/pr/credit-suisse-resolves-fraudulent- mozambique-loan-case-547-million-coordinated-global [https://perma.cc/3T5G-26LD]; see also In re Bank of America AIG. 980 F.Supp.2d at 570.

including: a huge number of illiquid positions primarily involving Collateralized Loan Obligations

and distressed credit in the Global Markets Division, id. § 116; and a $214 million loss when

Malachite Capital Management defaulted in March 2020, id. § 118. During the tenure of Thiam’s

successor, non-Defendant Thomas Gottstein, id. { 122, the Company endured: the effects of the

March 2021 insolvency of Greensill Capital (UK) Ltd. (“Greensill”), a “huge” Credit Suisse IB

and Asset Management client, id. § 126; and a $5.5 billion loss following the March 2021 “blow-

up” of Archegos, id. J 132. Investigative reports over the years — whether commissioned by Credit Suisse, id, { 135,

or authored by FINMA, id. { 138 — discuss cultural, personnel, and business process issues at

Credit Suisse, id. [J 136-137; “condemnj] senior management — including members of the

Executive Board — for violating their . . . obligations to ‘prioritize risk management’ and to create

and enforce, across the enterprise, ‘a [culture of [rlesponsibility, [ajccountability, and [rjespect

for [clontrols,” id. 137; and conclude that “[t]he repeated scandals and losses severely damaged

[Credit Suisse’s] reputation and undermined confidence in the bank and its management,” id.

41. Plaintiffs allege that, “By the summer of 2022, fixing the bank’s admittedly broken risk

culture was front and center for senior management,” id. § 150, but assert that, “The frequency and

severity of the scandals, blow-ups, fines, and even criminal convictions inevitably led

progressively and inexorably to the widely accepted view that Credit Suisse’s culture, particularly

its ‘risk culture,’ created and propagated by the New York Investment Bank, was rotten and was

not getting better. Defendants [only one of whom, Klein, was at that point affiliated with Credit

Suisse] continued to elevate their personal paycheck over the interests of depositors, shareholders,

and creditors, and they flouted any semblance of proper risk culture and risk mitigation, preferring

to gamble with house money to enrich themselves.” Jd. § 8. Plaintiffs consider the cumulative

effect of the individual scandals — and the “overwhelming fear of what lurked beneath” -- as what

“ultimately led to the fatal loss of trust” in the Bank. /d. § 13.

c. Credit Suisse’s March 2023 Collapse Credit Suisse met its end in March 2023, after “‘loss of trust’ manifested in huge and

accelerating outflows” from the Bank. Id, 4 156. During the week of March 13, 2023, the Bank

reached its internal liquidity limit at the Swiss National Bank (“SNB”), id, 17, 157, after which

the Swiss government provided the Bank with $43.5 billion in “extraordinary” liquidity assistance

on March 15, 2023, id. § 158. By March 16, 2023, a further $15.6 billion was withdrawn from

customer accounts; in response, the Swiss government provided an additional $22.3 billion in

“extraordinary” liquidity assistance in light of the “foreseeable or continuing outflows.” /d. □ 159.

According to Plaintiffs, by the weekend of March 18-19, 2023, the Swiss government and

the Swiss Financial Market Supervisory Authority (“FINMA”) determined they had to act, since,

according to the Swiss Minister of Finance, “Credit Suisse would not have survived Monday,” i.e.,

the next trading day. Jd. {| 14, 162. The Swiss government and FINMA “concluded they had but

a few viable options for Credit Suisse: bankruptcy, resolution, nationalization, or a forced sale.”

Id. 4 163. The Swiss government and FINMA proceeded to force a merger of Credit Suisse into one

of its competitors, UBS Group AG (“UBS”), another Swiss corporation. Jd. J 17. To facilitate the

merger, on March 19, 2023, FINMA issued a decree (the “FINMA Decree”) to Credit Suisse,

ordering the write-down of all of Credit Suisse’s outstanding AT1 bonds to zero. Id. {fj 17, 164.

FINMA had concluded that: “Credit Suisse Group [was] experiencing a crisis of confidence, which

ha[d] manifested in considerable outflows of client funds;” “it was necessary for the authorities to

take action in order to prevent serious damage to the Swiss and international financial markets,”

the Bank had experienced “substantial liquidity outflows since October 2022” and the customer

withdrawals accelerated from March 13 and 14, 2023; and as a result of the “major reputational damage,” the “deep crisis of confidence,” the accelerating customer withdrawals, and the resulting

liquidity shortages, Credit Suisse had to zero out the value of all outstanding AT! bonds to

“prevent insolvency” and to “ensure the continued existence of [Credit Suisse}.” Jd § 164.

Plaintiffs claim that though the FINMA Decree was “the immediate instrumentality by which the

AT1 bonds were wiped out,” it “was not the cause of the wipeout or of the holders’ losses” —“Loss

of trust was the cause,” Jd. 166. Plaintiffs allege that, nearly two months before the FINMA Decree and Credit Suisse’s

collapse, id. {§ 167-68, Credit Suisse executives “were scheming behind the scenes . . . to insulate

themselves and former highly-placed executives from losses they anticipated in connection with

the Tier 1 capital instruments, ie., the Credit Suisse Employee Contingent Capital Awards

(*‘CCAs’) and AT1 bonds,” id. § 167, On January 12, 2023, Credit Suisse informed FINMA that it

would no longer count CCAs as Regulatory Core Tier 1 capital. Jd, Plaintiffs view this as support

for their belief that, “Credit Suisse executives knew—based on their insider knowledge of the dire

situation of the bank, the deepening crisis of confidence, and the scale of customer and client

withdrawals—that the value of Tier 1 capital component of their own compensation had

evaporated or been dramatically diminished,” id { 168, and “took decisive and aggressive action

to protect their own Tier | exposure over those of Plaintifi{s] and the Class,” id. { 169.

Following the FINMA Decree, Credit Suisse attempted to save the CCA instruments by

asking FINMA to reconsider its decision as applied to CCAs. /d. 7172. But, on March 23, 2023,

FINMA denied Credit Suisse’s request for reconsideration and determined that the CCAs were

covered by the FINMA Decree — and thus were to be written-off and canceled. Jd. | 173. Plaintiffs

assert that FINMA’s “decision merely confirmed what the Credit Suisse executives had known

months before — that the ‘loss of trust that had accumulated over the years;’ had already likely

damaged, and threatened to destroy, the value of Tier 1 capital instruments like the AT1 bonds and

the CCAs as early as January 2023.” Id. Again, Plaintiffs allege that “Defendants” did these things without regard to the pleaded

fact that most of them had left Credit Suisse by 2020, id. Ff] 41-49, and all but Klein were out of

the Company long before any requests were made to FINMA about the treatment of the CCAs in

2023, id. { 49. As a matter of pure logic, the only Individual Defendant who could have been

complicit in actions taken in the weeks and months immediately prior to the closure of Credit

Suisse was Klein.

Ill. Procedural History The Schur and Hohimer Complaints were filed on December 18, 2023 and December 22,

2023, respectively, and were virtually identical to the complaint in Star Colbert v. Dougan, 23 Civ.

7297, On January 2, 2024, the Court stayed Schur and Hohimer while deciding the motion to

dismiss that was pending in Star Colbert. On March 20, 2024, Star Colbert was dismissed on

forum non conveniens grounds. On March 21, 2024, | instructed the Schur and Hohimer Plaintiffs

to show why Schur and Hohimer should not be dismissed for substantially the same reasons as

Star Colbert. Dkt. No. 5.4 On March 29, 2024, the Plaintiffs asked that the Court lift the stay to

allow them to amend their complaints, Dkt. No. 6, and on April 8, 2024, I granted that request,

Dkt. No. 82

4 All Dkt. references are to the Schur Docket, unless stated otherwise. 5 See Hahimer Docket.

On April 15, 2024, Plaintiffs filed Amended Complaints. The Complaints parrot each

other, Each pleading alleges one cause of action arising under Swiss law: the Defendants’ alleged

negligent breach of statutory duties in violation of Swiss Code of Obligations Articles 716a, 716b,

717, 754, and 759. Dkt. No. 7. Defendants moved to dismiss both Complaints. Dkt. No. 15.

DISCUSSION

1. Plaintiffs’ Claims Are Dismissed On Forum Non Conveniens Grounds

Plaintiffs allege that Defendants, in their mismanagement of Credit Suisse, negligently

breached the statutory duties they owed to Credit Suisse AT1 bondholders under the Swiss Code

of Obligations, which regulates Swiss companies.° Compl. 174. Specifically, Plaintiffs asserts

that the Defendants violated Articles 716a, 716b, 717, 754, and 759 of the Swiss Code of

Obligations. /d. Ff 174-80. Article 716(a) of the Swiss Code of Obligations lists a Board of Directors’ non-transferable

and inalienable duties under Swiss Law, which include: the “overall management of the company

and the issuing of all necessary directives,” the organization of “the accounting, financial control

and financial planning systems as required for management of the company;” the appointment and

dismissal of “persons entrusted with managing and representing the company;” and the “overall

supervision of the persons entrusted with managing the company, in particular with regard to

compliance with the law, articles of association, operational regulations, and directives.” Article

716(b), on the “Delegation of Business Management,” states that, “Unless the articles of

6 An English translation of Part Five: The Code of Obligations of the Swiss Civil Code can be found on the Swiss Confederation’s online platform for federal law: hitps:/Awww.fedlex .admin.ch/eli/ec/2 7/3 17.321 □□ 7/en, archived af pttos://perma.ce/GTM2-W37D,

association provide otherwise, the board of directors may delegate the management of all or part

of the company’s business in accordance with [organizational | regulations to individual members

or third parties (executive board).” If the company’s shares are listed on a stock exchange, “the

management of the company’s business may be delegated to individual members of the board of

directors or to other natural persons. The management of the company’s assets may be delegated

to natural persons or legal entities.” Article 717, titled “Duty of Care and Loyalty,” provides that:

“The members of the board of directors and third parties engaged in managing the company’s

business must perform their duties with all due diligence and safeguard the interests of the

company in good faith.” Article 754 states that, “The members of the board of directors and all

persons engaged in the business management or liquidation of the company are liable both to the

company and to the individual shareholders and creditors for any losses or damage arising from

any intentional or negligent breach of their duties.” Article 759 governs joint and several liability.

Plaintiffs claim that, “Wherever located, Credit Suisse’s directors and executive board

members were bound by duties set out in the Swiss Code of Obligations (‘CO’). Those duties were

owed not only to Credit Suisse but also, by statute, directly to its shareholders and creditors.”

Compl. ¢ 24. Plaintiffs assert that “Credit Suisse AT1 bondholders, including Plaintiffs and each

of the other Class members, as creditors, have suffered direct loss or damage due to Defendants’

negligent breach of their duties...” Id. 4201. In response, the Defendants contend that “The Amended Complaints are the latest attempt

assert Swiss-law claims against former directors and officers of Credit Suisse .. . a Swiss

corporation -- seeking to recover for losses on AT1 bonds that were issued in Switzerland and

which are governed by Swiss law (and which contain a Swiss forum-selection clause), after those

bonds were the subject of a mandatory write-down by the Swiss financial regulator, FINMA.”

MTD, at 1. Defendants urge this court to dismiss Plaintiffs’ Swiss law claims either on the basis

of forum non conveniens of because Plaintiffs have failed to state a claim for relief under Swiss

law. As was the case in Star Colbert, I find that, whatever merit Plaintiffs’ claims may have,

“This litigation raises another instance of the common cases in which plaintiffs commence lawsuits

in United States courts to adjudicate disputes entailing alleged losses suffered from commercial

transactions and other events that occur predominantly in a foreign country. .. . Plaintiffs’ claims

involve not an ordinary commercial dispute between two parties to a transaction, but matters of

corporate governance that implicate the legal interests of countless third-party shareholders around

the world, not just those litigants now before the Court.” In re Alcon S’holder Litig., 719 F,Supp.2d

263, 268 (S.D.N.Y. 2010). Plaintiffs seek to recover for losses on bonds that were the subject of a

mandatory write-down by order of the Government of Switzerland. Compl. | 17, They are suing

exclusively for violations of Swiss law by the directors and officers of a Swiss corporation. The

bonds whose write-down forms the basis for the suit contain a Swiss forum-selection clause.

As Defendants point out in their motion to dismiss, Plaintiffs have made two notable

changes from the pleading in Star Colbert: “They tactically select only U.S. named Plaintiffs and

only U.S. named Defendants.” MTD, at 1. But that, it turns out, is not a difference that makes a

difference. This dispute should be adjudicated in Switzerland. Defendants’ motions are

GRANTED. a. The Forum Non Conveniens Doctrine The forum non conveniens doctrine is a discretionary device that permits a court, in

certain instances, to dismiss a claim even if the court is a permissible venue with proper

jurisdiction over the claim. Wiwa y, Royal Dutch Petroleum Co., 926 F.3d 88, 100 (2d Cir.

2.000) (citation and internal quotation marks omitted); Olin Holdings Ltd. v. Libya, No. 21-cv-

A150, 2022 WL 8654507, at *7 (S.D.N.Y. Mar. 23, 2022), “The central purpose of a forum non

conveniens inquiry is to determine where trial will be most convenient and will serve the ends of

justice.” R. Maganlal & Co. MG, Chem. Co., 942 F.2d 164, 167 (2d Cir. 1991).

Courts in this Circuit engage in a three-step process to determine whether forum non

conveniens dismissal is appropriate. See Norex Petroleum Lid. v. Access Indus., Ine., 416 F.3d

146, 154 (2d Cir. 2005). The first step requires the Court to determine the degree of deference to

be afforded to the plaintiff's choice of forum. Id. at 153-54. Next, the Court examines whether

an adequate alternative forum exists. In re Alcon, 719 F.Supp.2d at 269 (citations omitted).

Finally, the Court must balance the private and public interest factors enumerated by the

Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) that are implicated in the

choice of forum. Olin Holdings, 73 F.4th at 109; Wiwa, 226 F.3d at 100; Norex, 416 F.3d at 153.

The defendant has the burden of establishing that an adequate alternative forum exists, and then

showing that the balance of private and public interest factors tilts heavily in favor of the

alternative forum. Olin Holdings, 73 F Ath at 109; Wiwa, 226 F.3d at 100.

Defendants urge this court to dismiss the Complaints on the basis of ‘forum non

conveniens, arguing, as the defendants did in Star Colbert, that (1) Plaintiffs’ choice of forum

should be given no deference, (2) Switzerland remains an adequate forum to adjudicate claims of

corporate mismanagement under Swiss law, and (3) the Gilbert private and public interest factors

weigh strongly in favor of dismissal. For the most part, | agree with Defendants.

(1) Deference to Plaintiffs’ Choice of Forum

While “generally, there is a strong presumption in favor of the plaintiff's choice of

forum,” Do Rosario Veiga v. World Meteorological Org., 486 F.Supp.2d 297, 303 (S.D.N.Y.

2007) (citations omitted), “the degree of deference to be given to a plaintiff's choice of forum

moves on a sliding scale depending on several relevant considerations,” /ragorri v. United Tech,

Corp., 274 F.3d 65, 71 (2d Cir. 2001): Factors to be considered include: “the convenience of the plaintiff's residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant's amenability to suit in the forum district, the availability of appropriate legal assistance, and other reasons relating to convenience or expense.” On the other side of the equation, circumstances “generally indicative of forum shopping,” see Norex, AIG F.3d at 155, include “attempts to win a tactical advantage resulting from local laws that favor the plaintiff's case, the habitual generosity of juries in the United States or in the forum district, the plaintiff's popularity or the defendant's unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum.” Maersk, Inc. v. Neewra, Inc., 554 F.Supp.2d 424, 451 (S.D.N.Y. 2008) (citing Iragorri, 274 F.3d

at 72). Significantly, “a district court is not required to consider every single factor specifically in

making this determination,” Cortec Corp. y. Erste Bank Ber Oesterreichischen Sparkassen AG

(Erste Bank), 535 F.Supp.2d 403, 408 (S.D.N.Y. 2008) (citing Norex, 416 F.3d at 155).

“[W]here the circumstances indicate that the parties and material events bear no bona fide

connection to the United States, or that in relation to the core operative facts in dispute the

parties and events at best have only marginal links to the plaintiff"s chosen venue, that choice of

forum is not entitled to special deference.” Do Rosario Veiga, 487 F.Supp.2d at 302.

Applying the /ragorri sliding scale to the instant actions, Plaintiffs’ choice of the

Southern District of New York as the forum to litigate their Swiss law claims can be accorded

only a minimal level of deference. See Lazare Kaplan Int’l Inc. v. KBC Bank N.V.,337

F.Supp.3d 274, 297 (S.D.N.Y. 2018). Though the record indicates that genuine convenience

may have informed Plaintiffs’ choice of a New York forum, Norex, 416 F.3d at 155, the core

operative facts in dispute have limited links to the Southern District of New York, see LaSala y,

UBS. AG, 510 F.Supp.2d 213, 224 (S.D.N.Y. 2007). First, though there is no “rigid rule of decision protecting U.S. citizen or resident

plaintiffs from dismissal for forum non conveniens,” Wiwa, 226 F.3d at 102; see also Piper

Aircraft Co. v. Reyno, 454 US. 235, 256 n.23 (1981); Sussman v. Bank of Israel, 801 F.Supp.

1068, 1073 (S.D.N.Y. 1992), Second Circuit “caselaw and that of the Supreme Court has clearly

and unambiguously established that courts should offer greater deference to the selection of a

U.S. forum by U.S. resident plaintiffs . .. » Wiwa, 226 F.3d at 102 (citations omitted). Specifically, district courts must consider whether, in view of the plaintiff's U.S. residence,

forum non conveniens dismissal would cause the plaintiff significant hardship. /d. Here,

Plaintiffs — U.S. residents — argue that filing in the Southern District of New York was “not an

attempt to seck a tactical advantage by filing in a distant forum that would burden defendants

with the expense and difficulty of litigating far from home,” and assert that litigating their claims

in the alternate forum — Switzerland — would cause significant hardship, as it would be difficult,

result in extraordinary expenses, and require all parties to travel 4,000 miles to a foreign court,

which, in turn, would be oppressive. Opp. Memo, at 3, 6, 13. Second, all of the Defendants are U.S. citizens, and most of the Defendants can be

considered citizens of New York. Compl. {ff 41-49. “Defendants’ amenability to suit in this

district weighs somewhat in favor of deferring to Plaintiff's choice of forum. However, they are

also subject to suit in [Switzerland],” Lazare Kaplan, 337 F Supp.3d at 298; Schertenleib v.

Traum, 589 F.2d 1156, 1164 (2d Cir. 1978) — according to Plaintiffs’ and Defendants’ Swiss law

experts, Swiss courts have jurisdiction over Credit Suisse’s directors and officers. See Schnyder/

Hauenstein Decl., 48-51; Star Colbert Dkt. No. 34, at 14-16.

But a plaintiff's choice to initiate suit in a defendant’s supposed home forum — as

opposed to any other forum where the defendant is also amenable to suit — “only merits

heightened deference to the extent that the plaintiff and the case possess bona fide connections

to, and convenience factors favor, that forum.” Pollux Holding Ltd. v. Chase Manhattan Bank,

329 F.3d 64, 74 (2d Cir. 2003). The record and the parties’ submissions temper the level of

deference to be accorded to Plaintiffs’ choice of forum. Plaintiffs are suing in a representative capacity. Of course, class action status is merely

one consideration in the deference determination, see Celestin v. Martelly, No. 18-cv-7340, 2023

WL 6385339, at *5 (E.D.N.Y, Sept. 29, 2023), but Plaintiffs seek to represent, “AII holders of a

beneficial interest in Credit Suisse U.S. Dollar denominated AT1 notes or Global Certificates

between January 12, 2023, and March 19, 2023, inclusive, cleared, settled, recorded or held by or

through The Depository Trust Company . . . in New York.” Compl. § 184. Despite Plaintiffs’

best efforts at centering the proposed Class in the United States — for example, they claim that

approximately 44% of the par value of AT1 bonds were held by U.S. persons or institutions as of

December 31, 2022, id. 4 186 —“The proposed class framed in the complaint is a worldwide

class,” Gilstrap v. Radianz, 443 F.Supp.2d 474, 480 (S.D.N.Y. 2006), and by Plaintiffs’ own

admission, the majority of the bonds were owned by persons or institutions outside of the United

States. Plaintiffs stress the cases’ connections to New York and argue that most discovery will

focus on the Defendants and other people who worked with or under them in the Investment

Bank in New York. They insist that “they do not consider that testimony from former Credit

Suisse directors residing in Switzerland or Credit Suisse board minutes will be necessarily

required to try the case as pleaded.” Opp. Memo, at 12. Plaintiffs further assert that “discovery of

U.§.-resident non-defendants would be far more difficult and expensive” in Switzerland. Jd. at

11-12. It seems that Plaintiffs are arguing that since “the loss of trust” that allegedly led to Credit

Suisse’s downfall “traces primarily to continuing risk culture problems in connection with the

Investment Bank in New York,” id. at 12, this limits the need for information from FINMA and

the Swiss government. Plaintiffs explain that they “do not intend to contest the actions of

FINMA or the Swiss government, or their public explanations as to their actions and the options

they were faced with.” Id. at 12. Additionally, Plaintiffs’ Amended Complaints — presumably in an effort to center their

actions in New York — now contain references to the role of the Depository Trust Corporation, or

DTC, as the clearing agent for “USD denominated AT1 Notes,” Compl. {fj 34-35, 53; Opp.

Memo, at 2, and include the claim that “[t]he New York-based Investment bank... served as the

sole Book-running Manager and acted as the sole representation of the syndicate of managers

‘nvolved in the issuance of the AT1 bonds,” Compl. {] 33, 38, 52,

But contrary to Plaintiffs’ characterization of their cases, the core operative facts

underlying their claims “arise mostly out of the operations of [a foreign entity] outside of the

United States,” Erausquin v. Notz, Stucki Mgmt. (Bermuda) Ltd., 806 F.Supp.2d 712, 725

(S.D.N.Y. 2011) (citing in re Alcon, 719 F.Supp.2d at 269), and bear little connection to the

Southern District of New York, Jn re Alcon, 719 F.Supp.2d at 269. To put it succinctly: (1) Plaintiffs” only allege violations of Swiss law; (2) these cases are about the alleged

mismanagement of a Swiss bank; and (3) Plaintiffs’ claims arise proximately from the write-down

of the AT! bonds by the Swiss corporation, acting at the direction of the Swiss banking regulator,

EINMA. Their claims do not arise from the actions of DIC or any other U.S. entity. Whatever

occurred in the years leading up to the action of which Plaintiffs complain — the write-down of the

bonds — the decision to write down the bonds was made not in New York, but in Switzerland.

So as much as Plaintiffs attempt to paint their cases as involving a New York-based investment

bank and not Swiss regulators, “[e]very significant aspect of [these] case[s] — which [are] based

on board-level and executive level decisions of a Swiss corporation — boils down to Switzerland:

the location of the alleged wrongdoing, the applicable law, and the maj ority of witnesses and

documents.” Catian v. Rohner, 2023 N.Y. Slip Op. 31213, 2023 WL 2868337, at *8 (N.Y. Sup,

Ct. Apr. 10, 2023) (citation omitted). Defendants correctly describe the Complaints as “hav[ing}, essentially, two substantive

parts: allegations concerning Defendants’ alleged misconduct dating back over a decade, and

allegations concerning the events in March 2023 that led to the write-down of the AT1 bonds at

issue.” MTD, at 8-9. It is the first part, not the second, that provides the alleged link to this district

and the United States. But as will be discussed more fulsomely below, the various US. based

scandals and pleas and fines and reports that, per Plaintiffs, led to the write-down of their bonds

Bank’s downfall are matters of public record. It will require little or no discovery to prove that

those events occurred; they can be proved using records that have long been publicly available.

And the Complaint itself reveals that, “the multiple Credit Suisse scandals and losses, even as

severe as the Archegos and Greensill scandals, had little apparent and immediate impact on ATi

bond pricing — or risk to the AT1 bonds, as assessed by the market.” Compl. { 72. Because of the

terms of the bonds, the bondholders continued to receive payments, and the market value of the

bonds during these “background years” did not decline. Jd.

However, as alleged in the second part of the Complaints, the actual proximate cause of

the Defendants’ loss was the order of a Swiss regulator instructing the Bank to write down the

bonds. Plaintiffs insist that it was the Credit Suisse officers and Board’s years of negligent

mismanagement that caused the write-down, not the actions of the regulators; but the fact is, Swiss

governmental regulators issued the decree instructing Credit Suisse to write all AT] bonds down

to zero, id. { 172, so their actions and the reasons for those actions will have to be proved in order

to try the asserted claims. This Court is well aware, from the pleadings in other cases before this

court (notably, Diabat v. Credit Suisse Group AG, No. 23-cv-5874) that the write-down decision

was the culmination of six frantic months of internal hemorrhaging as Credit Suisse executives

tried to find a way to restructure the Company that would stop what is properly characterized as a

“run on the bank” — efforts that, in the end, failed, While the mention of those events is

conspicuously absent from the pleadings in the two cases presently before the Court, because the

write-down of the bonds, not any of the prior scandals, was the proximate cause of Plaintiffs’

economic injury, I fail to see how Plaintiffs can avoid exploring the decisions surrounding the

direction to write down the bonds. Those decisions cannot be proved by introducing records of

pleas or copies of reports, as can the decade and a half of scandals and losses that are so fulsomely

described in the Complaint. Proving them would entail calling current and former employees of

Credit Suisse, FINMA, and Credit Suisse’s successor, UBS. The majority of those witnesses are

located outside the United States; only Defendant Klein, the lone defendant who was affiliated

with the Bank in the months leading up to the write-down of the AT1 bonds and who might have

some information relevant to that decision, is located in New York. Because the action that

proximately caused the Plaintiffs’ loss took place in Switzerland, supporting documents will likely

be located where Credit Suisse held its Board meetings and where the regulators made their

decisions — again, in Switzerland. Because evidence about disputed facts, as opposed to long-

settled and readily provable (quite possibly stipulatable) facts, is predominantly, if not exclusively,

located in Switzerland, it appears that, as was the case in Star Colbert, there will be significant

barriers to accessing foreign witnesses and evidence in the Southern District of New York. See

Norex, 416 F.3d at 156; Celestin, 9023 WL 6385339, at *5; infra pp. 27-32. The Second Circuit in Jragorri said: “Rather than simply characterizing the case as one in

negligence, contract, or some other area of law, the court should focus on the precise issues that

are likely to be actually tried, taking into consideration the convenience of the parties and the

availability of witnesses and the evidence needed for the trial of these issues” — i¢., the Gilbert

factors, which are discussed below (infra pp. 26-37), 274 F.3d at 74. The actual issues to be tried

in these cases — the issues that are likely to raise disputed issues of fact, requiring the testimony of

witnesses and documents — are not what happened during the long-ago scandals, or what led to the

admissions and guilty pleas, or whether certain investments made a decade ago were or were not

ill-advised. The triable issues are not, in short, the issues that are extensively discussed in the

Plaintiffs’ Complaints. The facts of those matters were long ago settled. The triable issues involve

the actions of the Swiss regulators and the reasons why those regulators took those actions, And

as will be seen below when the Gilbert factors ate discussed, the convenience factors

overwhelmingly favor litigation of these cases in Switzerland. Finally, and not of the least importance ~ per the terms of the bonds, the bondholders agreed

that Zurich would be the exclusive location for actions relating to the cancellation of the notes. See

Star Colbert Dkt. No. 34, Ex. 1, at 88, The parties’ experts disagree about the scope of the forum-

selection clause and whether it applies to this dispute, see id.; Schnyder/Hauenstein Decl., at 46,

But the very fact that the Plaintiffs consented to a forum-selection clause that places any and all

lawsuits about the bonds’ cancellation in Zurich totally undermines their argument that a suit about

the value of the bonds should be adjudicated in New York. See also Schnyder/Hauenstein Decl.,

at 46; Star Colbert Dkt, No. 34, Ex. 1, at 88; Star Colbert, 2024 WL 1197863, at #6. To me, this

suggests that Plaintiffs’ choice of forum should be afforded lesser deference. Thus, Plaintiffs’ choice of forum will not be given the heightened deference for which

Plaintiffs hoped. See Niv v. Hilton Hotels Corp., 710 F.Supp.2d 328, 335 (S.D.N. Y. 2008). As in

In re Alcon, 719 E.Supp.2d at 271 n.6, the Court notes “that the level of deference here is tied

primarily to the overwhelmingly Swiss nature of the . .. conduct at issue.”

But while “a lesser degree of deference to the plaintiffs choice bolsters the defendant’s

case,” it “does not guarantee dismissal.” Jragorri, 274 F.3d at 74. And so we turn to the next

factor. (2) Adequacy of Switzerland as a Forum

L already ruled. in Star Colbert, that Switzerland is an adequate forum for adjudication of

claims arising under Swiss law involving the directors and officers of the same Swiss

corporation. Plaintiffs point to no reason why | should alter that conclusion in this suit. While

Plaintiffs’ Swiss law experts insist that Switzerland is not the only adequate forum for the

Plaintiffs’ actions, Schnyder/Hauenstein Decl., at 48-59, Plaintiffs do not assert in their

opposition papers that Switzerland is in any way an inadequate forum. Therefore, I find that

Switzerland offers an adequate alternative forum for the instant actions. Glob, Art Exhibitions,

Inc. vy. Kuhn & Bitlow Italia Versicherungsmakler GmbH, 607 F.Supp.3d 421, 437 (S.D.N.Y.

2022). (3) The Gilbert Factors The final step of the forum non conveniens analysis is to weigh two sets of factors — the

private interest factors and the public interest factors — to determine whether adjudication is more

appropriate in the present forum or in an alternative forum. Gilbert, 330 U.S. at 508-09; Online

Payment Sols. Inc. v. Svenska Handelsbanken AB, 638 EF Supp.2d 375, 386 (S.D.N.Y. 2009).

“Because much of the [forum non conveniens] doctrine’s strength derives from its flexibility and

each case turns on its own facts, a single factor is rarely dispositive.” Dikienzo v. Philip Servs.

Corp., 294 F.3d 21, 29 (2d Cir. 2002). “Gilbert instructs reviewing courts to disturb a plaintiff's

choice of forum only where the balance of private and public interest considerations ‘strongly

favors’ the moving defendant.” Jn re Alcon, 719 F.Supp.2d at 275.

In these cases, it does. 1. Private Interests The private interests enumerated in Gilbert, 330 U.S. at 508-09, embrace: the ease of

access to evidence; the cost for witnesses to attend trial; the availability of compulsory process;

and all other factors that make trial of a case easy, expeditious, and inexpensive. Gilbert, 330

US. at 508; Cap. Currency Exch., NV. v. Nat'l Westminster Bank PLC, 155 F.3d 603, 609 (2d

Cir, 1998) (citing Piper, 454 U.S. at 241; Gilbert, 330 U.S. at 508). “Bach of the first three of these factors depends on the location of evidence necessary to 4

trial in this case and the difficulties associated with seeking to produce that evidence before a court

in the Southern District of New York.” Glob. Art, 607 F.Supp.3d at 438. However, “in light of

technological advances in transportation and communication, . . . the location of documents isa

factor which is to be given less weight now,” Shtofmakher vy. David, No. 14 Civ. 6934, 2015 WL

5148832, at *3 (S.D.N.Y. Aug. 17, 2015), and “[t}he cost of obtaining testimony from willing

witnesses is... a fairly minor factor,” Glob. Art, 607 F.Supp.3d at 439. Certain “inevitable costs”

“ean be alleviated under U.S. law by the submission of letters rogatory and the availability of

videotaped depositions,” Maersk, 554 F.Supp.2d at 454, but, “there is, of course, a preference for

live testimony.” Gilstrap, 443 F.Supp.2d at 488 (citing DiRienzo, 294 F.3d at 30).

Plaintiffs assert that most of the witnesses and evidence needed to prove their claims is in

New York or elsewhere in the United States, and little is in Switzerland. Opp. Memo, at 16. They

claim that they do not necessarily need: the testimony of foreign members of the Board of

Directors; Board minutes; nor testimony/additional documentary evidence from FINMA or the

Swiss government that has not already been released to the public in official government reports

that can likely be judicially noticed, Jd. They further assert that testimony from former Credit

Suisse employees who worked in New York will be needed to prove the risk culture allegations,

and that those individuals would not necessarily agree to testify voluntarily in Switzerland. Jd.

Plaintiffs also claim that other “practical problems that make trial of a case easy, expeditious and

inexpensive” — travel costs, language barriers at trial (all parties being native English-speakers),

and the like — also weigh in favor of litigation in the U.S. rather than Switzerland. Jd. at 17.

But Plaintiffs are wrong. Their assertion about how these cases wil! have to be tried is, as

discussed above, supra pp. 21-25, demonstrably false. The essence of their claims is that the

Swiss regulators demanded that the bonds be written down because of the years of

mismanagement. Documents relating to why the Swiss regulators took the action they did will

likely be found, as I concluded in Star Colbert, in Switzerland; specifically, evidence related to

the FINMA Decree and the subsequent write-down of the bonds is likely based in Switzerland.

And because Credit Suisse has been subsumed by UBS — which is not a party to these cases —

UBS, a Swiss corporation, undoubtedly has custody of many of the corporate documents that

would be needed to litigate Plaintiffs’ claims. Were the cases to remain in this court, the parties

could only access documentary evidence in Switzerland (or in any other countries where they

might be) in a manner that is compliant with the country’s legal restrictions. Plaintiffs point to

nothing tending to show that UBS has caused any of the evidence Plaintiffs might like to

examine to remain in the United States. It is also probable that some of the relevant documentary evidence ~ especially the

evidence relating to the Employee CCAs and communications between FINMA and Bank

representatives about the treatment of those bonds — is in French, Italian, or German, which

would require translation, thus increasing litigation costs. See ustok y. Banque Populaire

Suisse, 546 F.Supp. 506, 511 (S.D.N.Y. 1982), Significantly, there is not a single allegation that

any of the U.S.-based Defendants was involved in any decisions about how to treat the CCAs for

regulatory purposes or in any discussions with Swiss regulators about the CCAs.

Both sides will likely have to call multiple Swiss government officials as non-parly

witnesses, as those officials are likely to have considerably more relevant knowledge about the

actual events and communications leading up to the write-down than the named Defendants

(most of whom left Credit Suisse years before the write-down). Examples of potential witnesses

include current and former employees of Credit Suisse, UBS, FINMA, and the Swiss

government or Swiss agencies (¢.g., the Swiss Ministry of Finance, Swiss National Bank). Not

only would it be costly for all of these Europeans (most of them Swiss) to travel to the United

States, but also there are difficulties related to effecting compulsory process on non-party

witnesses residing in Switzerland.

. And Plaintiffs do not even acknowledge the fact that a U.S. court might well be imposing

costs on a foreign government, which has foreign policy implications that can easily be avoided

by requiring the Defendants to fly to Europe — something they undoubtedly did during their

employment at Credit Suisse — to have their testimony taken, should their testimony prove

necessary. .

Plaintiffs’ assertion that Swiss regulators and employees of Credit Suisse who dealt with

them would not have to be called as witnesses is, frankly, disingenuous, Although the Complaint

lists a litany of scandals and adverse events at Credit Suisse going back over a decade prior to the

Bank’s collapse, I state, again, that Plaintiffs’ claims arise out of the cancellation of the bonds.

The Plaintiffs must establish why the Swiss regulatory authority instructed Credit Suisse to write

down the bonds in the spring of 2023 — specifically, whether FINMA did so because of the

Archegos and Greensill losses in 2021, Compl. § 72, 127, 129, 131-32, 147, or the Mozambique

Tuna Boat Scandal that occurred between 2012 and 2016, id. 106, or violations of New York

banking law between 2008 and 9015 in connection with manipulating and rigging the foreign

exchange currency market, id. { 105, or the Company’s 2014 guilty plea for engaging ina

criminal conspiracy to aid and assist U.S. taxpayers in filing false returns, id. { 103, or all of the

above — or whether it was because of the Bank’s loss of customers and assets in the months

immediately prior to its seizure and takeover. There will be little dispute about the awful things

that happened at Credit Suisse over the past decade and a half. No one is going to have to prove

that the Archegos investment happened, or that the Tuna Boat Scandal led to guilty pleas ina

United States court, or that the Company admitted to violations of New York banking law, or

that Credit Suisse pled guilty ten years ago to assisting U.S. taxpayers in committing tax fraud.

As I have already mentioned, the guilty pleas and the fines and the losses and the reports are all

matters of public record, and can be established with publicly-filed documents. The testimony of

witnesses will not be required to prove that these things happened. Indeed, were these cases to be

litigated in this court, the requirement that the cases be litigated as speedily and inexpensively as

possible (see Fed. R. Civ. P. 1) would obviate the need for many, if not all, of the Defendants to

have their depositions taken about these long-ago matters.

Were these cases to remain in the Southern District of New York, obtaining evidence and

testimony from the Swiss witnesses who would have to be called would likely implicate the

Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Jn re

Alcon, 719 E.Supp.2d at 276. “Courts in the Second Circuit have widely recognized that

obtaining evidence through the Hague Convention and letters rogatory are [sic] cumbersome and

inefficient, and hardly make litigation in the United States convenient.” Rabbi Jacob Joseph Sch.

y, Allied Irish Banks, P.L.C., No. 11-cv-05801, 2012 WL 3746220, at *7 (E.D.N.Y. Aug. 27,

2012) (citations omitted), in re Alcon, 719 F.Supp.2d at 276. “In all probability, these

circumstances would cause not only greater financial hardships, but additional litigation and

attendant significant delays in preparing the case for trial before this Court, and ultimately in

resolving the merits of the dispute.” /n re Alcon, 719 F.Supp.2d at 276. Overall, “[t]his massive

inefficiency and inconvenience that fusing the Hague Evidence Convention] would create for

defendants and plaintiffs is all the more striking given the existence of an alternative forum” — in

these cases, Switzerland — “where many of these problems would not arise.” Rabbi Jacob Joseph

Sch., 2012 WL 3746220, at *7 (citing Reers v. Deutsche Bahn AG, 320 F.Supp.2d 140, 162

(S.D.N.Y. 2004)) (internal quotation marks omitted)). And “[t]o the extent plaintiffs are

concemed that, should this action be dismissed in favor of an [Swiss] forum, they would be

unable to obtain pretrial discovery of persons and documents located within the United States,

they may, of course, request that this Court—and any other district court with jurisdiction over

individuals they believe to have relevant testimony and/or documents—-order such persons to

provide such discovery in aid of a foreign proceeding.” Gilstrap, 443 F,Supp.29 at 489 (citing 28

U.S.C. § 1782).

There will be witnesses who are not parties who live elsewhere, and taking their

testimony will be cumbersome and subject to local restrictions. To the extent that travel is

involved, the cost will “be borne by the parties regardless of where the litigation takes place.”

Celestin, 2023 WL 6385339, at #8 And while ordinarily, those facts would render this factor

neutral, the involvement of the Swiss government in these cases pushes this factor in favor of

Switzerland, Rather than navigate the process of attempting to compel those officials to travel to

the Southern District, it is far more convenient for the cases to instead proceed within the Swiss

court system. Plaintiffs also argue that forcing them to litigate in Switzerland would likely end these

cases, given the requirement to retain Swiss counsel on an hourly fee basis, the need to post a

court costs bond in advance, the likely need for so-called After the Event insurance to cover cost-

shifting or so-called “loser pays” liability in the event any Swiss litigation is not successful, and

other costs that make large-scale individual claimant litigation in Switzerland prohibitively expensive, Opp. Memo, at 16. However, for the reasons discussed in Star Colbert, it seems as if

Plaintiffs are overstating the financial burden of bringing this lawsuit in light of certain Swiss

law principles, i.e., the cost recovery principle that puts an upper limit on payments for costs, and

a principle of proportionality, which means that a fee is not to be manifestly disproportionate and

is to remain within reasonable limits. 2024 WL 1197863, at *20.

Finally, though the Second Circuit has stated repeatedly that the existence of related

proceedings is not even mentioned in Gilbert, and therefore should not be given much

consideration,” Jn re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 230 F.Supp.2d 376,

391 (S.D.N.Y. 2002) (citations omitted); see DiRienzo, 294 F.3d at 31, it is not totally irrelevant

that there is a/ready litigation in Switzerland concerning the AT] bonds brought by putative

members of (and so by probable opt outs from) the proposed Class.’ Plaintiffs argue that, “The

mere possibility that the outcome of the administrative cases against FINMA might affect

damages or causation in this case does not point to either Switzerland or New York; any effects

on this case would be the same without regard to forum.” Opp. Memo, at 17. This may be true —

but since the existence of related proceedings “should not be given much consideration,” Inre

Ski Train Fire, 230 F.Supp.2d at 391, Plaintiffs’ argument does little to alter the forum non

conveniens analysis. However, to the extent that the existence of related proceedings carries any

weight, it weighs in favor of moving these cases to Switzerland. 2. Public Interests The public interest factors enumerated in Gilbert, 330 U.S. at 508-09, include: the

administrative difficulties associated with court congestion; the unfairness of imposing jury duty

on community with no relation to the litigation; the local interest in having localized

controversies decided at home; and the avoidance of difficult problems in conflict of laws and

the application of foreign law. Murray v. British Broad. Corp., 81 F.3d 287, 293 (2d Cir, 1996);

DiRienzo, 294 F.3d at 31. These considerations also weigh heavily in favor of dismissal of these

actions. Do Rosario Veiga, 486 F.Supp.2d at 307, First, the administrative difficulties flowing from court congestion is neutral. See Giro,

Inc. v. Malaysian Airline Sys. Berhad, No. 10 Civ. 5550, 2011 WL 21 83171, at *9 (S.D.N.Y.

June 3, 2011); Glob. Art, 607 F.Supp.3d at 440. While “The Southern District of New York may

nave one of the nation’s busiest dockets . . . its administration is very efficient.” Glob. Art, 607

F.Supp.3d at 440.

7 | cannot help but note that this fact bolsters the conclusion that Switzerland affords the Plaintiffs a perfectly adequate forum to recover their losses.

Next, Plaintiffs assert that, “The jury duty question is different than in Star Colbert,” as

the “central allegations concern local conduct by local New York people, which had tremendous

impacts locally (almost 20% of the AT-1 bonds were held by New Yorkers) and beyond. That

conduct in New York had impacts both in New York and in other places doesn’t make New

York jury duty unfair.” Opp. Memo, at 17-18.

However, as discussed above, supra pp. 21-25, the Court disagrees with Plaintiffs’

characterization of their central allegations. The facts surrounding the decision to cancel the

bonds are far from local to New York or the United States. Accordingly, it would be unfair to

impose jury duty on ‘ndividuals in the Southern District of New York, a community with, at best,

limited relations to the real issue (as opposed to the artfully pleaded issues) in this litigation. The

dominant Swiss contacts diminish any purported connection to the New York jury pool. Palacios

y. The Coca-Cola Co., 757 F,Supp.2d 347, 362 (S.D.N.Y. 20109). “Asa result, ‘{t]he interest in

protecting jurors from sitting on cases with no relevance to their own community weighs

heavily’ in favor of dismissal.” /d. at 362-63 (quoting Alfadda v. Fenn, 159 F.3d 41, 46 (2d Cir.

1998)). Third, “There is a significant interest in having localized matters decided in the local

forum in accordance with domestic law governing the case.” Do Rosario Veiga, 486 F Supp.2d

at 307 (citing Gilbert, 330 U.S. at 509: In re Arb. between Monegasque de Reassurances S.A.M.

v. Nak Naftogaz of Ukr., 311 F.3d 488, 500-01 (2d Cir. 2002) (“Monegasque”)). “(The public

interest in having localized controversies decided at home” “requires an evaluation of which

forum possesses a stronger local interest in the controversy” — the United States or Switzerland,

LaSala vy. TSB Bank PLC, 314 F.Supp.2d 447, 461 (S.D.N.Y. 2007). That the answer is

Switzerland is clear.

Plaintiffs argue that “Credit Suisse’s collapse, and the loss of value to AT-1 bondholders,

is anything but a localized controversy,” and “the cause was more localized in New York than in

Switzerland or elsewhere, and effects have been felt here and around the world.” Opp. Memo, at

18. They assert that, “Saying that plaintiffs suffered losses ‘because’ of the FINMA decree is like

saying someone is in prison ‘because’ the warden put him in a cell and slammed the door.” /d. at

1. While it is undoubtably true that Credit Suisse’s collapse had a global impact, “Whatever

interest the United States has, it pales in comparison with that of Switzerland. Switzerland

possesses a strong interest in regulating the conduct of banks within its borders,” UBS, 510

F.Supp.2d at 229 (citation omitted). The FINMA-ordered write-down of Credit Suisse’s AT1

bonds is at the heart of these cases — even Plaintiffs acknowledge that the FINMA Decree was

“the immediate instrumentality by which the ATI bonds were wiped out... Compl. | 166.

The uncontested role of the Swiss regulator in instructing Credit Suisse to write-down all of its

AT1 bonds “necessarily lessens the United States’ interest in the litigation while further

increasing that of? Switzerland. Aguinda v, Texaco, Inc., 142 F.Supp.2d 534, 551 (S.D.N.Y.

2001). Some of the conduct that is alleged to have brought about the collapse of the Bank

occurred in New York. But “[bJecause the core events, operative facts, and associated private

and institutional interests at issue are local to Switzerland, the dispute should be resolved in that

country.” Do Rosario Veiga, 486 F.Supp.2d at 307 (citing Gilbert, 330 U.S. at 509; Monegasque,

311 F.3d at 500-01). Finally, “United States courts have ‘virtually no interest in resolving’ disputes governed

exclusively by foreign law.” Holzman v. Guogiang Xin, No. 12-cv-8405, 2015 WL 5544357, at

#10 (S.D.N.Y. Sept. 18, 2015) (quoting Murray, 81 F.3d at 293 (emphasis in original)). As

Plaintiffs point out in their Opposition Memo, “all agree that Swiss substantive law applies.” Opp.

Memo, at 18. They concede that this “might slightly support Switzerland,” but assert that this court

is “well able to sort through Swiss law issues on negligence or breach of duty,” and state that the

Second Circuit has cautioned against an excessive reluctance to undertake the task of deciding

foreign law. /d. (citing Manu Int'l, S.A. v, Avon Prods., Inc., 641 F.2d 62, 68 (2d Cir. 1981); accord

Boosey & Hawkes Music Publishers, Ltd. v, Walt Disney Co., 145 F.3d 481, 492 (2d Cir. 1998)). And Plaintiffs are correct: though “[d]etermining the content of Swiss law is obviously

easier at trial in Geneva,” Schertenleib, 589 F.2d at 1165, U.S. “ttjrial courts may find and apply

foreign law” and “may even use experts on foreign law to assist them,” Jn re Ski Train Fire, 230

F.Supp.2d at 391. But this “necessitates the introduction of inevitably conflicting expert evidence

on numerous questions of Swiss law, and it creates the uncertain and time-consuming task of

resolving such questions by an American judge unversed in civil law tradition.” Schertenleib, 389

F.2d at 1165. As discussed in Star Colbert, 2024 WL 1197863, at *24, parsing through the foreign

law issues in these actions will likely require “the interpretation and translation of foreign legal

statutes, texts, and treatises,” Caifan, 2023 WL 2868337, at *6, and while the task of applying

foreign law when necessary is “far from impossible,” Ramirez de Arellano vy. Starwood Hotels &

Resorts Worldwide, 448 F.Supp.2d 520, 531 (S.D.N.Y. 2006), there are many reasons not to do so

in the instant actions. “Switzerland is the forum with the most significant legal contacts with and

the greatest jurisdictional interest in the adjudication of the controversy before the Court. Also for

these reasons, an action should be tried in a forum familiar with the law governing the case. By

contrast, the Court finds no compelling reason why the law and judicial resources of this forum

should be applied to resolve this dispute, nor any overriding American policy interest that would

be promoted or enforced by doing so.” Do Rosario Veiga, 486 F.Supp.2d at 307-08.

b. After Balancing the Relevant Factors, I Conclude that the Cases Should Be Dismissed After balancing all of the relevant factors, the Court finds that dismissal on forum non

conveniens grounds is appropriate. “The dispute[s] at issue [are] decidedly Swiss, and the Court is

persuaded that Plaintiffs, if they so choose, would be able to adequately and more appropriately litigate this dispute in Switzerland.” In re Alcon, 719 F.Supp.2d at 279, “Retaining jurisdiction in

this district would not be convenient for the parties or the witnesses and would not promote principles of efficient and economically prudent litigation.” Tel. Sys. Intern., Inc. v. Network Telecom PLC, 303 F.Supp.2d 377, 385 (S.D.N.Y. 2003). Proceeding in Switzerland would be far

more convenient than litigating in the Southern District of New York — “Whatever witnesses,

events, and documents associated with relevant conduct may be found outside of Switzerland, the

point is that the connection of this action with the United States is marginal at best in comparison to the magnitude of the factual and legal links of all material aspects of the dispute to Switzerland.”

Deo Rosario Veiga, 486 F Supp.2d at 307. Although I believe that the Defendants are amenable to suit in Zurich, in an excess of

caution, I will condition the dismissal of these actions on the Defendants’ filing with the Court a

consent to jurisdiction in Zurich.® They have fourteen days to file written consents with the Court. Counsel may file representations on behalf of their clients.

All Defendants named in this lawsuit have already filed limited consents to jurisdiction in Zurich with respect to the Guvies law claim raised in Star Colbert. See Star Colbert Dkt. No. 71.

CONCLUSION For the foregoing reasons, Defendants’ motions to dismiss the Complaints are GRANTED. The Clerk of Court is not to close the files in these actions until further order of the Court. However, the motions at Dkt. No. 17 in Hehimer and Dkt. No. 15 in Schur should be removed from the Court’s list of open motions. This constitutes the decision and order of the Court. It is a written opinion.

Dated: September 19, 2024 (ite Ne

U.S.D.S. BY ECF TO ALL COUNSEL