- Court
- New York Supreme Court, Appellate Division, First Department
- Case Name
- Cattan v. Rohner
- Slip Op. No.
- 2026 NY Slip Op 03264
- Decision Date
- May 26, 2026
- Docket No.
- Index No. 652468/20, Appeal No. 6721-6722, Case No. 2023-05695, 2023-05719
Background
Ezra Cattan brought a derivative action on behalf of Credit Suisse Group AG, a Swiss banking corporation, against multiple current and former directors and officers of Credit Suisse. The lawsuit was filed in New York Supreme Court, New York County, and alleged that the individual defendants breached their duties under Swiss law through acts and omissions detrimental to the company at corporate headquarters in Switzerland. The alleged injuries to Credit Suisse occurred globally, not solely or primarily in New York.
The defendants moved to dismiss the amended complaint on the doctrine of forum non conveniens under CPLR 327(a). Supreme Court (Masley, J.) granted the motion and dismissed the complaint as against the moving defendants. The court also denied plaintiff’s motions to file sur-reply papers in connection with the motion to dismiss. Plaintiff appealed both orders.
On appeal, plaintiff attempted to argue for the first time that the action fell within the exception to forum non conveniens provided by CPLR 327(b), which applies to claims arising out of or relating to agreements governed by New York law. Plaintiff had initially raised this argument only in a motion for leave to file a sur-reply, which the trial court denied.
Holding
The First Department unanimously affirmed the dismissal. The court held that plaintiff failed to preserve his CPLR 327(b) argument because he first attempted to present it in a sur-reply motion that was properly denied. To the extent the argument was reviewable, it was unavailing because plaintiff’s Swiss law breach of duties claims did not “arise out of or relate to” any agreement governed by New York State law.
On the forum non conveniens analysis, the court found the motion court providently exercised its discretion in weighing the relevant factors. Although plaintiff resided in New York, he brought derivative claims on behalf of a Swiss company with its principal place of business in Switzerland. Most individual defendants resided outside New York. The causes of action lacked a substantial nexus with New York, and the alleged economic injuries to Credit Suisse occurred in Switzerland. The individual defendants were alleged to have breached their duties under Swiss law at corporate headquarters in Switzerland, and the ramifications were felt worldwide, not primarily in New York. Additionally, Switzerland had the primary interest in overseeing and regulating the operations of a Swiss bank and determining whether its directors met their obligations under Swiss law.
The court also noted that litigating in New York would impose substantial burdens, as key witnesses were high-ranking current and former Credit Suisse executives living in Switzerland, and most documentary evidence related to corporate governance was in Switzerland.
Key Takeaways
- Legal arguments first raised in a sur-reply motion that is denied are not preserved for appellate review.
- The CPLR 327(b) exception to forum non conveniens applies only when the claims arise out of or relate to an agreement governed by New York law; claims based on foreign law duties do not qualify.
- A plaintiff’s New York residency alone does not override other forum non conveniens factors, particularly when derivative claims are brought on behalf of a foreign corporation.
- Courts consider the location of key witnesses, documentary evidence, the principal place of business of the entity involved, and which jurisdiction has the primary regulatory interest.
- Where alleged corporate governance failures occur at a foreign headquarters under foreign law, the foreign jurisdiction’s regulatory interest in overseeing its own institutions weighs heavily in the analysis.
Why It Matters
This decision reinforces the limits of New York courts as a forum for derivative actions involving foreign corporations governed by foreign law. Even when a plaintiff has a genuine connection to New York, the forum non conveniens doctrine remains a powerful tool for dismissal where the substance of the claims centers on conduct and injuries occurring abroad. Practitioners contemplating derivative suits on behalf of foreign entities should be prepared to demonstrate a substantial nexus between New York and the alleged wrongdoing, not merely the plaintiff’s domicile. The decision also serves as a reminder of the importance of timely and properly raising legal arguments, as the failure to present the CPLR 327(b) argument in the original briefing proved fatal on appeal.