Stevenson v. Thornburgh

• Court: Court of Appeals for the Second Circuit
• Decided: February 3, 2026
• Docket: 24-1788-cv(L)
• Status: Unpublished

Opinion

24-1788-cv(L) Stevenson v. Thornburgh

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of February, two thousand twenty-six.

Present: GUIDO CALABRESI, REENA RAGGI, EUNICE C. LEE, Circuit Judges. __________________________________________

GREGORY A. STEVENSON, APPELLANT NICOLE LAWTONE-BOWLES AS A SHAREHOLDER OF CREDIT SUISSE GROUP AG AND ON BEHALF OF CREDIT SUISSE GROUP AG SHAREHOLDERS,

Plaintiffs-Appellants

v. 24-1788, 24-1794

RICHARD E. THORNBURGH, BRADLEY W. DOUGAN, JOHN G. POPP, BRIAN CHIN, JAY KIM, MIRKO BIANCHI, JOHN TINER, SEVERIN SCHWAN, IRIS BOHNET, LYDIE HUDSON, KAIKHUSHRU S. NARGOLWALA, SERAINA MACIA, JOAQUIN J. RIBEIRO, MICHAEL KLEIN, NOREEN DOYLE, JAMES L. AMINE, ERIC VARVEL, DAVID L. MILLER, DAVID R. MATHERS, LARA J. WARNER, TIMOTHY P. O’HARA, ROBERT S. SHAFIR, PAMELA A. THOMAS- GRAHAM, SEAN T. BRADY, ROBERT JAIN, PHILIP VASAN, CREDIT SUISSE HOLDINGS (USA) INC., CREDIT SUISSE SECURITIES (USA) LLC, CREDIT SUISSE CAPITAL LLC, CREDIT SUISSE MANAGEMENT LLC, KPMG LLP, PAUL KNOPP, WILLIAM THOMAS, LARRY BRADLEY, LAURA M. NEWINSKI, JOHN B. VEIHMEYER, BRIAN J. SWEET, DAVID BRITT, SCOTT MARCELLO, DAVID MIDDENDORF, THOMAS WHITTLE, CYNTHIA HOLDER, JEFFERY WADA,

Defendants-Appellees,

ALBERT SOHN, URS ROHNER, ROMEO CERUTTI, KPMG LLC, REGINA H. MAYOR,

Defendants. __________________________________________

FOR PLAINTIFFS-APPELLANTS: ANDREW WOLINSKY (Francis A. Bottini, Jr., Michelle C. Lerach, Albert Y. Chang, on the brief), Bottini & Bottini, Inc., La Jolla, CA.

FOR DEFENDANTS-APPELLEES CREDIT JASON M. HALL (Herbert S. Washer, Edward SUISSE CAPITAL LLC, CREDIT SUISSE N. Moss, Tammy L. Roy, Nicholas N. HOLDINGS (USA) INC., CREDIT SUISSE Matuschak, Britney R. Foerter, on the brief), MANAGEMENT LLC, CREDIT SUISSE Cahill Gordon & Reindel LLP, New York, SECURITIES (USA) LLC, JAMES L. AMINE, NY. MIRKO BIANCHI, IRIS BOHNET, SEAN T. BRADY, BRIAN CHIN, BRADY W. DOUGAN, NOREEN DOYLE, LYDIE HUDSON, ROBERT JAIN, JAY KIM, MICHAEL KLEIN, SERAINA MACIA, DAVID R. MATHERS, DAVID L. MILLER, KAIKHUSHRU S. NARGOWALA, TIMOTHY P. O’HARA, JOHN G. POPP, JOAQUIN J. RIBEIRO, SEVERIN SCHWAN, ROBERT S. SHAFIR, PAMELA A. THOMAS-GRAHAM, RICHARD E. THORNBURGH, JOHN TINER, ERIC VARVEL, PHILIP VASAN, and LARA J. WARNER

FOR DEFENDANTS-APPELLEES KPMG LLP, JAMIE L. WINE (Jason C. Hegt, Cory A. PAUL KNOPP, and LAURA M. NEWINSKI Calabresi, on the brief), Latham & Watkins LLP, New York, NY; Stephen P. Barry, on the brief, Latham & Watkins LLP, Washington, D.C.

2 FOR DEFENDANT-APPELLEE JEFFERY NATASHA ERTZBISCHOFF, Jonathan Richman WADA (Stephen R. Cook, on the brief), Brown Rudnick LLP, Irvine, CA.

FOR DEFENDANTS-APPELLEES DAVID David L. Axelrod, on the brief, Ballard Spahr MIDDENDORF, SCOTT MARCELLO, LLP, Philadelphia, PA. THOMAS METTLE, BRIAN J. SWEET, and CYNTHIA HOLDER

FOR DEFENDANTS-APPELEES WILLIAM Antonio Yanez, Jr., Pia Williams Keevil, on THOMAS, LARRY BRADLEY, and JOHN the brief, Willkie Farr & Gallagher LLP, B. VEIHMEYER New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of

New York (McMahon, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on May 29, 2024 is AFFIRMED.

In this consolidated putative class action against United States-based subsidiaries of former

Swiss bank Credit Suisse Group AG (“Credit Suisse”), 29 present and former Officers and

Directors of Credit Suisse, Credit Suisse’s alleged auditor KPMG LLP, and certain of KPMG’s

United States-based employees, plaintiffs, shareholders of Credit Suisse, allege that continuous

and systemic mismanagement—the worst allegedly occurring in Credit Suisse’s New York

operations—caused the Swiss bank to collapse in 2023. They assert one claim against all

defendants for breach of statutory duties to shareholders under multiple provisions of Swiss law

and two claims against most defendants under the federal Racketeer Influenced and Corrupt

Organizations Act (“RICO”).

The district court dismissed the RICO claims with prejudice. It dismissed the Swiss law

claim on forum non conveniens grounds without prejudice to refiling in Switzerland. Plaintiffs

3 timely appeal only from the dismissal of the Swiss-law claim. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal, which we

discuss only as necessary to explain our decision to affirm.

“The decision to dismiss a case on forum non conveniens grounds lies wholly within the

broad discretion of the district court and may be overturned only when we believe that discretion

has been clearly abused.” Iragorri v. United Technologies Corp., 274 F.3d 65, 72 (2d Cir. 2001)

(emphasis in original) (internal quotation marks omitted). In order to “guide the exercise” of this

discretion, we have instructed district courts to follow a three-step process. Norex Petroleum Ltd.

v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005). “At step one, a court determines the

degree of deference properly accorded the plaintiff’s choice of forum,” id., which “moves on a

sliding scale depending on several relevant considerations,” Iragorri, 274 F.3d at 71. At one end

of the scale, “the greater the plaintiff’s or the lawsuit’s bona fide connection to the United States

and to the forum of choice and the more it appears that considerations of convenience favor the

conduct of the lawsuit in the United States,” the more deference is warranted. Id. at 72. At the

other end, circumstances indicative of “forum-shopping,” such as “attempts to win a tactical

advantage resulting from local laws that favor the plaintiff’s case,” weigh against deference. Id.

Next, a court properly considers “whether the alternative forum proposed by the defendants is

adequate to adjudicate the parties’ dispute.” Norex Petroleum Ltd., 416 F.3d at 153. “Finally, at

step three, a court balances the private and public interests implicated in the choice of forum.” Id.

Here, plaintiffs challenge the district court’s determination that their choice of a New York

forum was “not entitled to substantial deference.” Stevenson v. Thornburgh, Nos. 23-cv-

4458(CM), 23-cv-4813(CM), 2024 WL 645187, at *25 (S.D.N.Y. Feb. 14, 2024). In particular,

plaintiffs fault the district court for relying on Cattan v. Rohner, 2023 N.Y. Slip Op. 31213, 2023

4 WL 2868337 (N.Y. Sup. Ct. Apr. 10, 2023), to infer that they had engaged in forum shopping, an

error that they submit tainted the district court’s further analysis of the adequacy of a Swiss forum

and the balance of equities. We are not persuaded.

Well before observing that an inference of forum shopping might be drawn from the forum

non conveniens dismissal of Cattan v. Rohner, 1 the district court identified the factors specified in

Norex and Iragorri, including the plaintiff’s or the lawsuit’s bona fide connection to the chosen

forum. Thus, it considered the plaintiffs’ domiciles within the class action brought, plaintiffs’

asserted considerations of cost and convenience, and the relationship of core operative facts to the

plaintiffs’ preferred forum, see Stevenson v. Thornburgh, 2024 WL 645187, at *25-26, and

concluded therefrom not that plaintiffs’ choice of forum warranted no deference, but that it did not

warrant substantial deference, see id. at *27. The district court recognized that there was some

nexus between the plaintiffs’ Swiss law claim and their chosen New York forum, but reasonably

concluded that the conduct at issue and dispute were “overwhelmingly Swiss” in nature. Id.

(internal citation omitted). We identify no abuse of discretion in this reasoning.

Insofar as plaintiffs argue that Switzerland is presently not an adequate forum because

litigating there would cause plaintiffs financial hardship and deprive them of the ability to bring a

class-action suit and try their case to a jury, the district court correctly observed that such

circumstances do not demonstrate the unavailability of the alternative forum. See, e.g., Aguinda

v. Texaco, Inc., 303 F.3d 470, 478 (2d Cir. 2022) (holding forum’s failure to recognize class actions

does not “deprive the plaintiffs of an effective alternative forum”); Murray v. British Broad. Corp.,

81 F.3d 287, 292–93 (2d Cir. 1996) (holding that plaintiff’s financial hardship is properly

1 Cattan v. Rohner differed significantly from the instant action insofar as it was a shareholder derivative suit brought on behalf of Credit Suisse, a Swiss entity, rather than a direct suit brought on behalf of United States-based shareholders.

5 evaluated as convenience factor rather than availability of forum analysis); Blanco v. Banco Indus.

de Venezuela, S.A., 997 F.2d 974, 982 (2d Cir. 1993) (“[S]ome inconvenience or the unavailability

of beneficial litigation procedures similar to those available in the federal district courts does not

render an alternative forum inadequate” (internal citations omitted)). Rather, such factors are more

properly considered to affect convenience, balance of interests, or even the “tactical advantage” of

one forum over another. Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d at 155. Here, the

district court evaluated the public and private interest considerations set forth in Gulf Oil Corp. v.

Gilbert, 330 U.S. 501, 508–09 (1946), without giving dispositive weight to any one factor, and

acted within its discretion in concluding that the interests of justice favor litigation in Switzerland.

Finally, plaintiffs argue that the district court erred by denying leave to amend the

complaint a second time. They are mistaken. The district court instructed the plaintiffs to file an

amended complaint in anticipation of a forum non conveniens motion (which they did) and advised

the plaintiffs that leave to amend the complaint a second time would not be granted. The plaintiffs

did not seek further leave to amend in the district court, either before or after the forum non

conveniens motion was determined.

“Although Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend

shall be freely given when justice so requires, it is within the sound discretion of the district court

to grant or deny leave to amend.” Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018) (internal citation

and quotation marks omitted). Here, where the plaintiffs were given one opportunity to amend

and did not seek another, and where they have not identified any additional facts or legal theories

they might assert if given leave to amend, we conclude that the district court did not abuse its

discretion in denying such leave.

* * *

6 We have considered the plaintiffs’ remaining arguments and conclude that they are without

merit. For the foregoing reasons, the May 29, 2024 judgment is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court