Preview
FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023
EXHIBIT 2
FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023
RECHTSHILFEERSUCHEN
LETTER OF REQUEST
COMMISSION ROGATOIRE
Haager Übereinkommen vom 18. März 1970 über
die Beweisaufnahme im Ausland in Zivil- oder Handelssachen
Hague Convention of 18 March 1970 on the
Taking of Evidence Abroad in Civil or Commercial Matters
Convention de La Haye du 18 mars 1970 sur
l’obtention des preuves à l’étranger en matière civile ou commerciale
1. Absender The Supreme Court of the State of New York
Sender
Expéditeur County of New York: Commerical Part 48
60 Centre Street, New York, NY, USA 10007
Telephone: 646-386-3304
sfc-part48@nycourts.gov
2. Zentrale Behörde des Obergericht des Kantons Zurich
ersuchten Staates
Central Authority of the Requested
Zentralbehorde Rechtshilfe Zivilsachen,
State Internationale Rechtshilfe,
Autorité centrale de l’État requis
Hirschengraben 15,
Postfach, 8021
Zurich, Switzerland
3. Person an welche die Jeremy P. Robinson, Esq.
Schriftstücke zurückzusenden
sind, aus denen sich die Bernstein Litowitz Berger & Grossmann LLP
Erledigung des 1251 Avenue of the Americas, 44th Floor
Rechtshilfeersuchens ergibt,
Person to whom the executed request New York, NY
is to be returned
Personne à qui les pièces constatant
USA 10020
l’exécution de la demande doivent
être renvoyées On behalf of: New York County Supreme Court
4. Zeitpunkt, bis zu welchem die ersuchende Behörde eine Antwort auf das
Rechtshilfeersuchen erbittet
Specification of the date by which the requesting authority requires receipt of the response to the Letter
of Request
Indiquer la date limite à laquelle l’autorité requérante désire recevoir la réponse à la commission
rogatoire
Datum August 15, 2023
Date
Date limite
Grund für die Dringlichkeit As per the Preliminary Conference Order attached as
Reason for urgency*
Raison de l’urgence Exhibit A, the following upcoming case deadlines
support urgent action:
- Party depositions to be noticed by August 7, 2023;
- Document production to be substantially completed
by August 15, 2023; and
- fact discovery, including all fact depositions, to be
completed by December 22, 2023.
Although the Parties reserved all rights to seek
additional time if international process is required,
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Plaintiff needs the requested documents for
depositions and to make a good faith effort to meet
the existing deadlines in the New York Action.
Der unterzeichnende Antragsteller beehrt sich, nach Artikel 3 des Übereinkommens das
folgende Ersuchen zu stellen:
In conformity with Article 3 of the Convention, the undersigned applicant has the honour to submit
the following request:
En conformité de l’article 3 de la Convention, le requérant soussigné a l’honneur de présenter la demande
suivante :
5. a Ersuchende Behörde (Art. 3 The Supreme Court of the State of New York
Buchstabe a)
Requesting authority County of New York: Commerical Part 48
(Art. 3(a))
Autorité requérante
60 Centre Street, New York, NY, USA 10007
(art. 3(a)) Telephone: 646-386-3304
sfc-part48@nycourts.gov
b An die zuständige Behörde von Obergericht des Kantons Zurich
(Art. 3 Buchstabe a)
To the Competent Authority of Zentralbehorde Rechtshilfe Zivilsachen,
(Art. 3(a))
À l’Autorité compétente de
Internationale Rechtshilfe,
(art. 3(a)) Hirschengraben 15,
Postfach, 8021
Zurich, Switzerland
c Bezeichnung und Index No. 651657/2022
Aktenzeichen der Rechtssache
Names of the case and any
identifying number Employees Retirement System for the City of
Nom de l’affaire et numéro
d’identification de l’affaire
Providence, derivatively as a shareholder of Credit
Suisse Group AG on behalf of Credit Suisse Group AG,
Plaintiff
v.
Urs Rohner, Iris Bohnet, Christian Gellerstad, Andreas
Gottschling, Michael Klein, Shan Li, Seraina Macia,
Richard Meddings, Kai S. Nargowala, Ana Paula
Pessoa, Joaguin J. Ribeiro, Severin Schwan, John
Tiner, Eric Varvel, Thomas P. Gottstein, Lara J.
Warner, Brian Chin, David Miller, Parshu Shah,
Radhika Venkatraman,
Defendants,
and
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Credit Suisse Group AG,
Nominal Defendant
(Under US law, Credit Suisse Group AG (now UBS
Group AG) is customarily identified as a “nominal
defendant”)
6. Namen und Anschriften der Parteien und ihrer Vertreter (einschließlich der Vertreter im
ersuchten Staat) (Art. 3 Buchstabe b)
Names and addresses of the parties and their representatives (including representatives in the Requested
State*) (Art. 3(b))
Identité et adresse des parties et de leurs représentants (y compris représentants dans l’État requis) (art.
3(b))
Kläger/Antragsteller Plaintiff, Employees Retirement System for the City of
a Plaintiff/claimant/applicant
Demandeur Providence
Vertreter* Jeroen van Kwawegen, Jeremy Robinson, Andrew
Representatives*
Représentants* Blumberg, Maria Nudelman
Bernstein Litowitz Berger & Grossmann LLP
1251 6th Ave, New York, NY 10020
Beklagter/Antragsgegner Urs Rohner
b Defendant/respondent
Défendeur Rossacher 11
8126 Zumikon
Switzerland
Vertreter* Herbert Washer, David Januszewski, Jason Hall
Representatives*
Représentants* Cahill, Gordon & Reindel LLP
32 Old Slip
NY, NY 10005
U.S.A.
Dr. Peter Reichart
Wartmann Merker AG
Kirchgasse 48
P.O. Box CH-8024
Zurich, Switzerland
Weitere Beteiligte* Defendants Christian Gellerstad, Iris Bohnet, Andreas
c Other parties*
Autres parties* Gottschling, Michael Klein, Shan Li, Serania Macia,
Richard Meddings, Kai S. Nargolwala, Ana Paula Pessoa,
Joaquin Ribeiro, Severin Schwan, John Tiner, Eric Varvel,
Thomas Gottstein, Lara Warner, Brian Chin, David Miller,
Radhika Venkatraman.
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Vertreter* Herbert Washer, David Januszewski, Jason Hall
Representatives*
Représentants* Cahill, Gordon & Reindel LLP
32 Old Slip
NY, NY 10005
U.S.A.
Dr. Peter Reichart
Wartmann Merker AG
Kirchgasse 48
P.O. Box CH-8024
Zurich, Switzerland
7. a Art und Gegenstand der The New York Action is a shareholder derivative action
Rechtssache (z.B.
Ehescheidung, brought by a stockholder of the former Credit Suisse
Abstammung, Group AG (which has now been absorbed into UBS
Vertragsverletzung,
Produkthaftung) (Art.3 Group AG by way of a merger under the Swiss Merger
Buchstabe c) Act with effect as of June 12, 2023) (defined herein as
Nature of the proceedings
(divorce, paternity, breach of "Credit Suisse," "CS" or the "Bank"), namely, the
contract, product liability, etc.)
(Art. 3(c))
Employees Retirement System for the City of Providence,
Nature et objet de l’instance for the benefit of the Bank. This claim is filed on the
(divorce, filiation, rupture de
contrat, responsabilité du fait des basis of articles 754 and 756 of the Swiss Code of
produits, etc.) (art. 3(c))
Obligations (SCO). The gravamen of the case is that
Credit Suisse's directors and officers breached their
fiduciary duties under Swiss law by failing to establish
and oversee reasonable risk management processes at
the Bank's New York-based Prime Brokerage and
Financing Business ("Prime Services").
Defendants' breaches of duties owed to Credit Suisse
and its stockholders caused many billions of dollars
worth of damages and massive job losses and caused
Credit Suisse to have to shut down its entire Prime
Services business due to catastrophic failures of the
Bank's risk management processes, which were exposed
after several high profile hedge fund failures.
See also the "Summary of Complaint" below.
b Gedrängte Darstellung des This New York shareholder derivative action is based on
Sachverhaltes
Summary of complaint Swiss law, notably articles 754 and 756 SCO. It was filed
Exposé sommaire de la demande
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by a shareholder of Credit Suisse (which was recently
absorbed into UBS Group AG) against the Bank's
Directors and Officers due to their breaches of their
duties of care and loyalty (“fiduciary duties”) owed to
Credit Suisse and its stockholders (see art. 717 SCO). In
addition to the standard duties of members of the Board
and of management set forth by article 717 SCO, the
Defendants owed specific duties. In particular,
Defendants were required to organize Credit Suisse in
such a way as to be able, in particular, “to identify, limit
and control the main risks” (art. 3f of the Swiss Bank
Act). In particular, Credit Suisse should have been able
to identify, limit and control credit risks, loss risks,
market risks, transaction execution risks, liquidity risks,
operational risks, legal risks and risks that could damage
its reputation (see art. 12 para. 2 of the Swiss Banking
Ordinance). Furthermore, according to the Circular
2017/1 of the Swiss Financial Market Supervisory
Authority (“FINMA”), the Board of Directors of a Swiss
bank is responsible for ensuring that there is both an
appropriate risk and control environment within the
institution and an effective internal control system (see §
14). In that context, Defendants were responsible for
putting in place and overseeing risk management
functions and their failure to do so for Credit Suisse gives
rise to liability for negligence.
By way of brief summary, as further detailed in the
Complaint sustained by the NY Court, Plaintiff alleges
that the Defendants—who were the Bank's Directors and
Senior Officers—failed to establish and oversee
reasonable risk management systems and controls at the
Bank, including those required to run a Prime Services
business. Due to the Defendants' breaches of their
fiduciary duties, Credit Suisse lacked the resources,
people, technology, systems and controls needed to
comprehend and manage the overall risk that the Bank
was taking on in its Prime Services business.
Defendants' risk management failures led to
investigations by government regulators across the
globe, including the FINMA. Indeed, following its
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investigation into the risk management failures
associated with only one hedge fund at issue (the
Greensill fund), FINMA stated in a press release dated
February 28, 2023 that it had concluded that "Credit
Suisse Group seriously breached its supervisory duty to
adequately identify, limit and monitor risks," which
resulted in "a serious breach of Swiss supervisory law."
The FINMA press release is attached as Exhibit B.
Contrary to and in violation of their obligations under
Swiss law, Defendants failed to establish and monitor
effective risk management functions at Credit Suisse and
failed to manage overall risks. Defendants' risk
management failures included the following, among
other things:
- Defendants established an inadequate, discretionary
"Know Your Customer" (KYC) process that allowed Prime
Services to onboard new clients while sidestepping
meaningful risk assessment. For example, Credit Suisse
onboarded Archegos without meaningful restrictions,
despite its history of issues including criminal wire fraud
and insider trading.
- Defendants failed to establish systems for
understanding and enforcing contractual protections in
trading agreements.
- Defendants' risks systems, among other things: gave
insufficient consideration to early warnings of potential
stress; had ineffective controls to assess full risk,
including idiosyncratic client risk; had insufficient
collateral posting because it relied on static rather than
industry-standard dynamic margining; had unclear
ownership roles and processes in the event of default;
had a fragmented crisis management process that
slowed any management reponses; had outdated
technology and unreliable data processing to determine
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trading limits; and relied on inexperienced personnel
unequipped to perform their duties.
- Defendants failed to allocate sufficient funds to
adequately support the risk management function.
Defendants' risk management failures came to light after
the well-publicized collapse of several of Credit Suisse's
hedge fund clients (including Malachite Capital
Management, Greensill Capital, and Archegos Capital
Management), which caused Credit Suisse to have to
shut down its entire Prime Services business resulting in
many billions of dollars of losses and other damages to
the Bank, including significant losses of jobs in New York
as well as extensive harm to Credit Suisse's reputation
and goodwill.
Indeed, an investigative report dated July 29, 2021 (the
"PW Report") commissioned by a Special Committee of
Credit Suisse's Board of Directors and conducted by Paul
Weiss ("PW"), a U.S. law firm, concluded that, for
example, the "losses sustained by [Credit Suisse] are the
result of a fundamental failure of management and
controls in [Credit Suisse's] Investment Bank and,
specifically, in its Prime Services business," which
"enabled ... voracious risk taking" despite "numerous
warning signals" that Defendants ignored. The PW
Report is available at: https://www.credit-
suisse.com/about-us/en/reports-research/archegos-info-
kit.html
c Gedrängte Darstellung des Defendants deny any wrongdoing and specifically deny
Vorbringens des
Antragsgegners / Beklagten the allegations and claims of breach of fiduciary duty set
und der Widerklage* forth in Plaintiff's complaint.
Summary of defence and
counterclaim*
Exposé sommaire de la défense
ou demande reconventionnelle*
d Weitere nützliche Angaben The Supreme Court of the State of New York (the "NY
oder Schriftstücke*
Other necessary information or Court") rejected a motion to dismiss filed by several
documents*
Autres renseignements ou
Defendants and, in particular, determined (1) that New
documents Utiles* York is a proper forum for this Action; and (2) that the
Action should move forward into discovery. The NY
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Court's rulings are set forth in two documents--(1) the
transcript of a court hearing held on December 8, 2022
(attached as Exhibit C) and, (2), a written decision issued
by the NY Court dated January 1, 2023 (attached as
Exhibit D).
Defendants have filed a motion to reargue the motion to
dismiss and have also filed a notice of appeal that
decision--both are currently pending. Several
Defendants also filed a separate motion to dismiss based
on a purported lack of personal jurisdiction, which they
agreed to withdraw during discovery, subject to a right
to renew after discovery has ended.
8. a Beweisaufnahme oder Production of documents and testimony from the
andere gerichtliche
Handlung, die witness.
vorgenommen werden soll
(Art. 3 Buchstabe d) Evidence
to be obtained or other judicial
act to be performed
(Art. 3(d))
Actes d’instruction ou autres
actes judiciaires à accomplir
(art. 3(d))
b Zweck der To assist the Parties and the New York Court to obtain
Beweisaufnahme oder
anderen gerichtlichen
the evidence necessary to establish the claims and
Handlung, die erbeten wird defenses at issue in the litigation.
Purpose of the evidence or
judicial act sought
But des actes d’instruction ou
des autres actes judiciaires à
accomplir
9. Namen und Anschriften der Urs Rohner
zu vernehmenden
Personen (Art. 3 Rossacher 11
Buchstabe e)* 8126 Zumikon
Identity and address of any
person to be examined (Art. Switzerland
3(e))*
Identité et adresse des
personnes à entendre (art. 3(e))*
10. Fragen, welche an die zu Urs Rohner is a key fact witness in the New York Action
vernehmende(n)
Person(en) gerichtet because he served as a Credit Suisse Board member and
werden sollen, oder the Chairman of the Credit Suisse Board from 2011 to
Angabe von Tatsachen,
über die sie vernommen 2021 and because he is a Defendant. Under the New
werden soll(en) (Art. 3 York Civil Practice Law and Rules (CPLR), Plaintiff is
Buchstabe f)*
entitled to examine Mr. Rohner as a fact witness in the
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Questions to be put to the New York Action. See, e.g., CPLR §3106 ("After an action
persons to be examined or
statement of the subject matter is commenced, any party may take the testimony of any
about which they are to be
examined (Art. 3(f))* person by deposition upon oral or written questions”);
Questions à poser ou faits sur see also CPLR §3107 ("A party desiring to take the
lesquels les personnes susvisées
doivent être entendues (art. 3(f))* deposition of any person upon oral examination shall
give to each party twenty days' notice, unless the court
orders otherwise").
Accordingly, Plaintiff needs Mr. Rohner to testify about
his own and the Credit Suisse Board of Directors’ efforts,
if any, to fulfill their obligations under Swiss law to
establish and oversee reasonable risk management
processes and procedures at Credit Suisse’s Prime
Services business, his awareness of the serious
deficiencies in Credit Suisse's risk management
processes and his knowledge of the red flags regarding
unreasonable risk management processes presented by
the Malachite, Greensill and Archegos defaults.
The specific questions to be asked are set forth below:
1. GENERAL TOPIC: General risk management oversight
(i) What is your understanding of your risk management
obligations as a Credit Suisse director?
(ii) Is it your understanding that the Credit Suisse Board
of Directors was responsible for establishing and
monitoring an effective risk management function and
managing overall risks?
(iii) During the period that you were a member of Credit
Suisse's Board of Directors, what did you and the other
Board members do to ensure that Credit Suisse's risk
management processes were reasonable and that the
company was adequately monitoring overall risks?
(iv) Is it your understanding that the Credit Suisse Board
of Directors was required to sign off on the institution-
wide risk management framework?
(v) During the period that you were a member of Credit
Suisse's Board of Directors, what did you and the other
Board members do to assess the sufficiency of the
company’s institution-wide risk management framework
before signing off on it?
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2. GENERAL TOPIC: Prime Services
(i) In 2020, Credit Suisse had a New York-based Prime
Services business, correct?
(ii) Describe your understanding of the Prime Services
business, including how it made money?
(iii) How did the Credit Suisse Board of Directors manage
and oversee risks faced by the Prime Services business?
(iv) What specifically did the Credit Suisse Board of
Directors do to ensure that the Prime Services business
had reasonable risk management procedures and
controls in place?
(v) What specifically did the Credit Suisse Board of
Directors do to ensure that the Prime Services business
had sufficient personnel, funding and other resources to
adequately manage risks?
3. GENERAL TOPIC: Delegation of risk management
duties
(i) During your time as a member of Credit Suisse's
Board of Directors, to whom did the Credit Suisse Board
of Directors delegate Prime Services risk management (if
anyone)?
(ii) Which documents (if any) set out the Credit Suisse
Board of Director’s delegation of Prime Services risk
management?
(iii) When did the Credit Suisse Board of Directors
delegate Prime Services risk management
responsibilities?
(iv) What due diligence did the Credit Suisse Board of
Directors perform into the manager to whom it
delegated risk management responsibilities before
delegating such responsibilities?
(v) After delegating Prime Services risk management
responsibilities, what did the Credit Suisse Board of
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Directors do to ensure that the manager was adequately
overseeing Prime Services risk?
(vii) What did the Credit Suisse Board of Directors do to
ensure the manager’s compliance with Swiss laws and
operational regulations?
4. GENERAL TOPIC: The Malachite failure
(i) What is your understanding, if any, of the two main
limits for managing a client’s credit risk as used by Credit
Suisse’s Prime Services business—namely, the Potential
Exposure and the Scenario limit?
(ii) Do you recall the failure of the hedge fund Malachite
Capital Management in 2020?
(iii) What is your understanding of the reasons that
Malachite failed?
(iv) When did the Credit Suisse Board of Directors first
learn that Prime Services risk personnel were concerned
about the reliability of data they were receiving
regarding Potential Exposure limits?
(v) Do you recall learning before the collapse of hedge
fund Malachite Capital Management that Credit Suisse
risk personnel did not believe in the accuracy of the data
they were receiving to manage credit risk?
(vi) If the Prime Services business risk management
personnel did not believe they were receiving sufficiently
accurate data to manage risk, do you believe that issue
should have been brought to the attention of the Credit
Suisse Board of Directors?
(vii) During your time as a member of Credit Suisse's
Board of Directors, what procedures did the Credit
Suisse Board of Directors put in place to ensure that risk
issues had to be brought to their attention?
(viii) Prior to the Malachite collapse, what did the Credit
Suisse Board of Directors do to address concerns of
Prime Services risk personnel regarding the quality of
available risk management data?
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(ix) During your time as a member of Credit Suisse's
Board of Directors, what did the Credit Suisse Board of
Directors do to assess the sufficiency of the Prime
Services’ business’ risk staffing?
(x) Do you have any basis to dispute the Paul Weiss
reports’ conclusion that between 2015 and 2021, Prime
Services saw a total headcount decrease of 44%?
(xi) Was the Credit Suisse Board of Directors aware that
the Prime Services business lost nearly half of its
employees between 2015 and 2021?
(xii) Did the Credit Suisse Board of Directors do anything
in 2019 or 2020 to assess Prime Services’ ability to
manage risks given that significant headcount reduction?
(xiii) When did the Credit Suisse Board of Directors first
learn of the Malachite collapse?
(xiv) Did the Credit Suisse Board of Directors attribute
the Malachite collapse, or the harm suffered as a result
of the collapse, to risk management failures?
(xv) Why did Credit Suisse’s Board of Directors instruct
Credit Suisse’s Internal Audit group to conduct a review
of the Malachite incident to identify root causes?
(xvi) When did you learn about the Internal Audit
group’s conclusions regarding the Malachite collapse?
(xvii) At the time, did you dispute any of the conclusions
reached by Credit Suisse’s Internal Audit group regarding
the Malachite collapse?
(xviii) Do you have any basis to dispute the Internal
Audit group’s conclusion that Credit Suisse did not
sufficiently consider “early warnings of potential
distress,” including “scenario exposure reaching full
capacity” and “[Potential Exposure] limit breaches”?
(xix) Do you have any basis to dispute the Internal Audit
group’s conclusion that Credit Suisse’s risk monitoring
was inadequate because the systems in place were not
designed to capture tail risk events such as extreme
market movement?
(xx) Do you have any basis to dispute the Internal Audit
group’s conclusion that Credit Suisse’s risk monitoring
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was inadequate because its scenario exposure analysis
did not enable personnel to timely address market stress
scenarios?
(xxi) Do you have any basis to dispute the Internal Audit
group’s conclusion that static Scenario limit modeling
was outdated?
(xxii) Do you agree that the conclusions of Credit
Suisse’s Internal Audit group required immediate
remedial action by the Board of Directors?
(xxiii) Did Credit Suisse take such immediate action?
What was it?
(xxiv) After the Credit Suisse Board of Directors received
the Internal Audit group’s analysis, what specific steps
did the Board of Directors take to immediately address
the identified risk management problems?
(xxv) In your view, what damage did the Malachite
failure cause to Credit Suisse?
5. GENERAL TOPIC: The Greensill failure
(i) Do you recall that in March 2021, Credit Suisse had to
close four funds related to companies of Lex Greensill?
(ii) What was your understanding of the reasons for
these fund closures?
(iii) Credit Suisse undertook an investigation into the
Greensill incident, correct?
(iv) What were the conclusions reached by Credit
Suisse’s investigation?
(v) Are you familiar with the Swiss Financial Market
Supervisory Authority or “FINMA”?
(vi) You understand that FINMA brought enforcements
proceedings against Credit Suisse in connection with the
Greensill incident, correct?
(vii) What is your understanding as to why FINMA
brought enforcement proceedings?
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(viii) There was an investigation of Credit Suisse in 2018
relating to Greensill, correct?
(ix) What do you remember about that investigation?
(x) What was the result of the investigation?
(xi) Did the Credit Suisse Board of Directors take any
actions with regards to risk oversight following the 2018
investigation?
(xii) Turning back to the 2021 investigation, do you have
any basis to dispute FINMA’s recent finding that Credit
Suisse seriously breached its supervisory obligations in
connection with Greensill with regard to risk
management and appropriate organizational structures?
(xiii) Are you aware that “FINMA concluded that Credit
Suisse Group seriously breached its supervisory duty to
adequately identify, limit and monitor risks in the
context of the business relationship with Lex Greensill
over a period of years”?
(xiv) Do you have any basis to dispute FINMA’s
conclusion that Credit Suisse Group seriously breached
its supervisory duty to adequately identify, limit and
monitor risks in the context of the business relationship
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FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 EXHIBIT 2 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 RECHTSHILFEERSUCHEN LETTER OF REQUEST COMMISSION ROGATOIRE Haager Übereinkommen vom 18. März 1970 über die Beweisaufnahme im Ausland in Zivil- oder Handelssachen Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters Convention de La Haye du 18 mars 1970 sur l’obtention des preuves à l’étranger en matière civile ou commerciale 1. Absender The Supreme Court of the State of New York Sender Expéditeur County of New York: Commerical Part 48 60 Centre Street, New York, NY, USA 10007 Telephone: 646-386-3304 sfc-part48@nycourts.gov 2. Zentrale Behörde des Obergericht des Kantons Zurich ersuchten Staates Central Authority of the Requested Zentralbehorde Rechtshilfe Zivilsachen, State Internationale Rechtshilfe, Autorité centrale de l’État requis Hirschengraben 15, Postfach, 8021 Zurich, Switzerland 3. Person an welche die Jeremy P. Robinson, Esq. Schriftstücke zurückzusenden sind, aus denen sich die Bernstein Litowitz Berger & Grossmann LLP Erledigung des 1251 Avenue of the Americas, 44th Floor Rechtshilfeersuchens ergibt, Person to whom the executed request New York, NY is to be returned Personne à qui les pièces constatant USA 10020 l’exécution de la demande doivent être renvoyées On behalf of: New York County Supreme Court 4. Zeitpunkt, bis zu welchem die ersuchende Behörde eine Antwort auf das Rechtshilfeersuchen erbittet Specification of the date by which the requesting authority requires receipt of the response to the Letter of Request Indiquer la date limite à laquelle l’autorité requérante désire recevoir la réponse à la commission rogatoire Datum August 15, 2023 Date Date limite Grund für die Dringlichkeit As per the Preliminary Conference Order attached as Reason for urgency* Raison de l’urgence Exhibit A, the following upcoming case deadlines support urgent action: - Party depositions to be noticed by August 7, 2023; - Document production to be substantially completed by August 15, 2023; and - fact discovery, including all fact depositions, to be completed by December 22, 2023. Although the Parties reserved all rights to seek additional time if international process is required, 1 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 Plaintiff needs the requested documents for depositions and to make a good faith effort to meet the existing deadlines in the New York Action. Der unterzeichnende Antragsteller beehrt sich, nach Artikel 3 des Übereinkommens das folgende Ersuchen zu stellen: In conformity with Article 3 of the Convention, the undersigned applicant has the honour to submit the following request: En conformité de l’article 3 de la Convention, le requérant soussigné a l’honneur de présenter la demande suivante : 5. a Ersuchende Behörde (Art. 3 The Supreme Court of the State of New York Buchstabe a) Requesting authority County of New York: Commerical Part 48 (Art. 3(a)) Autorité requérante 60 Centre Street, New York, NY, USA 10007 (art. 3(a)) Telephone: 646-386-3304 sfc-part48@nycourts.gov b An die zuständige Behörde von Obergericht des Kantons Zurich (Art. 3 Buchstabe a) To the Competent Authority of Zentralbehorde Rechtshilfe Zivilsachen, (Art. 3(a)) À l’Autorité compétente de Internationale Rechtshilfe, (art. 3(a)) Hirschengraben 15, Postfach, 8021 Zurich, Switzerland c Bezeichnung und Index No. 651657/2022 Aktenzeichen der Rechtssache Names of the case and any identifying number Employees Retirement System for the City of Nom de l’affaire et numéro d’identification de l’affaire Providence, derivatively as a shareholder of Credit Suisse Group AG on behalf of Credit Suisse Group AG, Plaintiff v. Urs Rohner, Iris Bohnet, Christian Gellerstad, Andreas Gottschling, Michael Klein, Shan Li, Seraina Macia, Richard Meddings, Kai S. Nargowala, Ana Paula Pessoa, Joaguin J. Ribeiro, Severin Schwan, John Tiner, Eric Varvel, Thomas P. Gottstein, Lara J. Warner, Brian Chin, David Miller, Parshu Shah, Radhika Venkatraman, Defendants, and 2 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 Credit Suisse Group AG, Nominal Defendant (Under US law, Credit Suisse Group AG (now UBS Group AG) is customarily identified as a “nominal defendant”) 6. Namen und Anschriften der Parteien und ihrer Vertreter (einschließlich der Vertreter im ersuchten Staat) (Art. 3 Buchstabe b) Names and addresses of the parties and their representatives (including representatives in the Requested State*) (Art. 3(b)) Identité et adresse des parties et de leurs représentants (y compris représentants dans l’État requis) (art. 3(b)) Kläger/Antragsteller Plaintiff, Employees Retirement System for the City of a Plaintiff/claimant/applicant Demandeur Providence Vertreter* Jeroen van Kwawegen, Jeremy Robinson, Andrew Representatives* Représentants* Blumberg, Maria Nudelman Bernstein Litowitz Berger & Grossmann LLP 1251 6th Ave, New York, NY 10020 Beklagter/Antragsgegner Urs Rohner b Defendant/respondent Défendeur Rossacher 11 8126 Zumikon Switzerland Vertreter* Herbert Washer, David Januszewski, Jason Hall Representatives* Représentants* Cahill, Gordon & Reindel LLP 32 Old Slip NY, NY 10005 U.S.A. Dr. Peter Reichart Wartmann Merker AG Kirchgasse 48 P.O. Box CH-8024 Zurich, Switzerland Weitere Beteiligte* Defendants Christian Gellerstad, Iris Bohnet, Andreas c Other parties* Autres parties* Gottschling, Michael Klein, Shan Li, Serania Macia, Richard Meddings, Kai S. Nargolwala, Ana Paula Pessoa, Joaquin Ribeiro, Severin Schwan, John Tiner, Eric Varvel, Thomas Gottstein, Lara Warner, Brian Chin, David Miller, Radhika Venkatraman. 3 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 Vertreter* Herbert Washer, David Januszewski, Jason Hall Representatives* Représentants* Cahill, Gordon & Reindel LLP 32 Old Slip NY, NY 10005 U.S.A. Dr. Peter Reichart Wartmann Merker AG Kirchgasse 48 P.O. Box CH-8024 Zurich, Switzerland 7. a Art und Gegenstand der The New York Action is a shareholder derivative action Rechtssache (z.B. Ehescheidung, brought by a stockholder of the former Credit Suisse Abstammung, Group AG (which has now been absorbed into UBS Vertragsverletzung, Produkthaftung) (Art.3 Group AG by way of a merger under the Swiss Merger Buchstabe c) Act with effect as of June 12, 2023) (defined herein as Nature of the proceedings (divorce, paternity, breach of "Credit Suisse," "CS" or the "Bank"), namely, the contract, product liability, etc.) (Art. 3(c)) Employees Retirement System for the City of Providence, Nature et objet de l’instance for the benefit of the Bank. This claim is filed on the (divorce, filiation, rupture de contrat, responsabilité du fait des basis of articles 754 and 756 of the Swiss Code of produits, etc.) (art. 3(c)) Obligations (SCO). The gravamen of the case is that Credit Suisse's directors and officers breached their fiduciary duties under Swiss law by failing to establish and oversee reasonable risk management processes at the Bank's New York-based Prime Brokerage and Financing Business ("Prime Services"). Defendants' breaches of duties owed to Credit Suisse and its stockholders caused many billions of dollars worth of damages and massive job losses and caused Credit Suisse to have to shut down its entire Prime Services business due to catastrophic failures of the Bank's risk management processes, which were exposed after several high profile hedge fund failures. See also the "Summary of Complaint" below. b Gedrängte Darstellung des This New York shareholder derivative action is based on Sachverhaltes Summary of complaint Swiss law, notably articles 754 and 756 SCO. It was filed Exposé sommaire de la demande 4 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 by a shareholder of Credit Suisse (which was recently absorbed into UBS Group AG) against the Bank's Directors and Officers due to their breaches of their duties of care and loyalty (“fiduciary duties”) owed to Credit Suisse and its stockholders (see art. 717 SCO). In addition to the standard duties of members of the Board and of management set forth by article 717 SCO, the Defendants owed specific duties. In particular, Defendants were required to organize Credit Suisse in such a way as to be able, in particular, “to identify, limit and control the main risks” (art. 3f of the Swiss Bank Act). In particular, Credit Suisse should have been able to identify, limit and control credit risks, loss risks, market risks, transaction execution risks, liquidity risks, operational risks, legal risks and risks that could damage its reputation (see art. 12 para. 2 of the Swiss Banking Ordinance). Furthermore, according to the Circular 2017/1 of the Swiss Financial Market Supervisory Authority (“FINMA”), the Board of Directors of a Swiss bank is responsible for ensuring that there is both an appropriate risk and control environment within the institution and an effective internal control system (see § 14). In that context, Defendants were responsible for putting in place and overseeing risk management functions and their failure to do so for Credit Suisse gives rise to liability for negligence. By way of brief summary, as further detailed in the Complaint sustained by the NY Court, Plaintiff alleges that the Defendants—who were the Bank's Directors and Senior Officers—failed to establish and oversee reasonable risk management systems and controls at the Bank, including those required to run a Prime Services business. Due to the Defendants' breaches of their fiduciary duties, Credit Suisse lacked the resources, people, technology, systems and controls needed to comprehend and manage the overall risk that the Bank was taking on in its Prime Services business. Defendants' risk management failures led to investigations by government regulators across the globe, including the FINMA. Indeed, following its 5 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 investigation into the risk management failures associated with only one hedge fund at issue (the Greensill fund), FINMA stated in a press release dated February 28, 2023 that it had concluded that "Credit Suisse Group seriously breached its supervisory duty to adequately identify, limit and monitor risks," which resulted in "a serious breach of Swiss supervisory law." The FINMA press release is attached as Exhibit B. Contrary to and in violation of their obligations under Swiss law, Defendants failed to establish and monitor effective risk management functions at Credit Suisse and failed to manage overall risks. Defendants' risk management failures included the following, among other things: - Defendants established an inadequate, discretionary "Know Your Customer" (KYC) process that allowed Prime Services to onboard new clients while sidestepping meaningful risk assessment. For example, Credit Suisse onboarded Archegos without meaningful restrictions, despite its history of issues including criminal wire fraud and insider trading. - Defendants failed to establish systems for understanding and enforcing contractual protections in trading agreements. - Defendants' risks systems, among other things: gave insufficient consideration to early warnings of potential stress; had ineffective controls to assess full risk, including idiosyncratic client risk; had insufficient collateral posting because it relied on static rather than industry-standard dynamic margining; had unclear ownership roles and processes in the event of default; had a fragmented crisis management process that slowed any management reponses; had outdated technology and unreliable data processing to determine 6 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 trading limits; and relied on inexperienced personnel unequipped to perform their duties. - Defendants failed to allocate sufficient funds to adequately support the risk management function. Defendants' risk management failures came to light after the well-publicized collapse of several of Credit Suisse's hedge fund clients (including Malachite Capital Management, Greensill Capital, and Archegos Capital Management), which caused Credit Suisse to have to shut down its entire Prime Services business resulting in many billions of dollars of losses and other damages to the Bank, including significant losses of jobs in New York as well as extensive harm to Credit Suisse's reputation and goodwill. Indeed, an investigative report dated July 29, 2021 (the "PW Report") commissioned by a Special Committee of Credit Suisse's Board of Directors and conducted by Paul Weiss ("PW"), a U.S. law firm, concluded that, for example, the "losses sustained by [Credit Suisse] are the result of a fundamental failure of management and controls in [Credit Suisse's] Investment Bank and, specifically, in its Prime Services business," which "enabled ... voracious risk taking" despite "numerous warning signals" that Defendants ignored. The PW Report is available at: https://www.credit- suisse.com/about-us/en/reports-research/archegos-info- kit.html c Gedrängte Darstellung des Defendants deny any wrongdoing and specifically deny Vorbringens des Antragsgegners / Beklagten the allegations and claims of breach of fiduciary duty set und der Widerklage* forth in Plaintiff's complaint. Summary of defence and counterclaim* Exposé sommaire de la défense ou demande reconventionnelle* d Weitere nützliche Angaben The Supreme Court of the State of New York (the "NY oder Schriftstücke* Other necessary information or Court") rejected a motion to dismiss filed by several documents* Autres renseignements ou Defendants and, in particular, determined (1) that New documents Utiles* York is a proper forum for this Action; and (2) that the Action should move forward into discovery. The NY 7 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 Court's rulings are set forth in two documents--(1) the transcript of a court hearing held on December 8, 2022 (attached as Exhibit C) and, (2), a written decision issued by the NY Court dated January 1, 2023 (attached as Exhibit D). Defendants have filed a motion to reargue the motion to dismiss and have also filed a notice of appeal that decision--both are currently pending. Several Defendants also filed a separate motion to dismiss based on a purported lack of personal jurisdiction, which they agreed to withdraw during discovery, subject to a right to renew after discovery has ended. 8. a Beweisaufnahme oder Production of documents and testimony from the andere gerichtliche Handlung, die witness. vorgenommen werden soll (Art. 3 Buchstabe d) Evidence to be obtained or other judicial act to be performed (Art. 3(d)) Actes d’instruction ou autres actes judiciaires à accomplir (art. 3(d)) b Zweck der To assist the Parties and the New York Court to obtain Beweisaufnahme oder anderen gerichtlichen the evidence necessary to establish the claims and Handlung, die erbeten wird defenses at issue in the litigation. Purpose of the evidence or judicial act sought But des actes d’instruction ou des autres actes judiciaires à accomplir 9. Namen und Anschriften der Urs Rohner zu vernehmenden Personen (Art. 3 Rossacher 11 Buchstabe e)* 8126 Zumikon Identity and address of any person to be examined (Art. Switzerland 3(e))* Identité et adresse des personnes à entendre (art. 3(e))* 10. Fragen, welche an die zu Urs Rohner is a key fact witness in the New York Action vernehmende(n) Person(en) gerichtet because he served as a Credit Suisse Board member and werden sollen, oder the Chairman of the Credit Suisse Board from 2011 to Angabe von Tatsachen, über die sie vernommen 2021 and because he is a Defendant. Under the New werden soll(en) (Art. 3 York Civil Practice Law and Rules (CPLR), Plaintiff is Buchstabe f)* entitled to examine Mr. Rohner as a fact witness in the 8 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 Questions to be put to the New York Action. See, e.g., CPLR §3106 ("After an action persons to be examined or statement of the subject matter is commenced, any party may take the testimony of any about which they are to be examined (Art. 3(f))* person by deposition upon oral or written questions”); Questions à poser ou faits sur see also CPLR §3107 ("A party desiring to take the lesquels les personnes susvisées doivent être entendues (art. 3(f))* deposition of any person upon oral examination shall give to each party twenty days' notice, unless the court orders otherwise"). Accordingly, Plaintiff needs Mr. Rohner to testify about his own and the Credit Suisse Board of Directors’ efforts, if any, to fulfill their obligations under Swiss law to establish and oversee reasonable risk management processes and procedures at Credit Suisse’s Prime Services business, his awareness of the serious deficiencies in Credit Suisse's risk management processes and his knowledge of the red flags regarding unreasonable risk management processes presented by the Malachite, Greensill and Archegos defaults. The specific questions to be asked are set forth below: 1. GENERAL TOPIC: General risk management oversight (i) What is your understanding of your risk management obligations as a Credit Suisse director? (ii) Is it your understanding that the Credit Suisse Board of Directors was responsible for establishing and monitoring an effective risk management function and managing overall risks? (iii) During the period that you were a member of Credit Suisse's Board of Directors, what did you and the other Board members do to ensure that Credit Suisse's risk management processes were reasonable and that the company was adequately monitoring overall risks? (iv) Is it your understanding that the Credit Suisse Board of Directors was required to sign off on the institution- wide risk management framework? (v) During the period that you were a member of Credit Suisse's Board of Directors, what did you and the other Board members do to assess the sufficiency of the company’s institution-wide risk management framework before signing off on it? 9 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 2. GENERAL TOPIC: Prime Services (i) In 2020, Credit Suisse had a New York-based Prime Services business, correct? (ii) Describe your understanding of the Prime Services business, including how it made money? (iii) How did the Credit Suisse Board of Directors manage and oversee risks faced by the Prime Services business? (iv) What specifically did the Credit Suisse Board of Directors do to ensure that the Prime Services business had reasonable risk management procedures and controls in place? (v) What specifically did the Credit Suisse Board of Directors do to ensure that the Prime Services business had sufficient personnel, funding and other resources to adequately manage risks? 3. GENERAL TOPIC: Delegation of risk management duties (i) During your time as a member of Credit Suisse's Board of Directors, to whom did the Credit Suisse Board of Directors delegate Prime Services risk management (if anyone)? (ii) Which documents (if any) set out the Credit Suisse Board of Director’s delegation of Prime Services risk management? (iii) When did the Credit Suisse Board of Directors delegate Prime Services risk management responsibilities? (iv) What due diligence did the Credit Suisse Board of Directors perform into the manager to whom it delegated risk management responsibilities before delegating such responsibilities? (v) After delegating Prime Services risk management responsibilities, what did the Credit Suisse Board of 10 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 Directors do to ensure that the manager was adequately overseeing Prime Services risk? (vii) What did the Credit Suisse Board of Directors do to ensure the manager’s compliance with Swiss laws and operational regulations? 4. GENERAL TOPIC: The Malachite failure (i) What is your understanding, if any, of the two main limits for managing a client’s credit risk as used by Credit Suisse’s Prime Services business—namely, the Potential Exposure and the Scenario limit? (ii) Do you recall the failure of the hedge fund Malachite Capital Management in 2020? (iii) What is your understanding of the reasons that Malachite failed? (iv) When did the Credit Suisse Board of Directors first learn that Prime Services risk personnel were concerned about the reliability of data they were receiving regarding Potential Exposure limits? (v) Do you recall learning before the collapse of hedge fund Malachite Capital Management that Credit Suisse risk personnel did not believe in the accuracy of the data they were receiving to manage credit risk? (vi) If the Prime Services business risk management personnel did not believe they were receiving sufficiently accurate data to manage risk, do you believe that issue should have been brought to the attention of the Credit Suisse Board of Directors? (vii) During your time as a member of Credit Suisse's Board of Directors, what procedures did the Credit Suisse Board of Directors put in place to ensure that risk issues had to be brought to their attention? (viii) Prior to the Malachite collapse, what did the Credit Suisse Board of Directors do to address concerns of Prime Services risk personnel regarding the quality of available risk management data? 11 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 (ix) During your time as a member of Credit Suisse's Board of Directors, what did the Credit Suisse Board of Directors do to assess the sufficiency of the Prime Services’ business’ risk staffing? (x) Do you have any basis to dispute the Paul Weiss reports’ conclusion that between 2015 and 2021, Prime Services saw a total headcount decrease of 44%? (xi) Was the Credit Suisse Board of Directors aware that the Prime Services business lost nearly half of its employees between 2015 and 2021? (xii) Did the Credit Suisse Board of Directors do anything in 2019 or 2020 to assess Prime Services’ ability to manage risks given that significant headcount reduction? (xiii) When did the Credit Suisse Board of Directors first learn of the Malachite collapse? (xiv) Did the Credit Suisse Board of Directors attribute the Malachite collapse, or the harm suffered as a result of the collapse, to risk management failures? (xv) Why did Credit Suisse’s Board of Directors instruct Credit Suisse’s Internal Audit group to conduct a review of the Malachite incident to identify root causes? (xvi) When did you learn about the Internal Audit group’s conclusions regarding the Malachite collapse? (xvii) At the time, did you dispute any of the conclusions reached by Credit Suisse’s Internal Audit group regarding the Malachite collapse? (xviii) Do you have any basis to dispute the Internal Audit group’s conclusion that Credit Suisse did not sufficiently consider “early warnings of potential distress,” including “scenario exposure reaching full capacity” and “[Potential Exposure] limit breaches”? (xix) Do you have any basis to dispute the Internal Audit group’s conclusion that Credit Suisse’s risk monitoring was inadequate because the systems in place were not designed to capture tail risk events such as extreme market movement? (xx) Do you have any basis to dispute the Internal Audit group’s conclusion that Credit Suisse’s risk monitoring 12 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 was inadequate because its scenario exposure analysis did not enable personnel to timely address market stress scenarios? (xxi) Do you have any basis to dispute the Internal Audit group’s conclusion that static Scenario limit modeling was outdated? (xxii) Do you agree that the conclusions of Credit Suisse’s Internal Audit group required immediate remedial action by the Board of Directors? (xxiii) Did Credit Suisse take such immediate action? What was it? (xxiv) After the Credit Suisse Board of Directors received the Internal Audit group’s analysis, what specific steps did the Board of Directors take to immediately address the identified risk management problems? (xxv) In your view, what damage did the Malachite failure cause to Credit Suisse? 5. GENERAL TOPIC: The Greensill failure (i) Do you recall that in March 2021, Credit Suisse had to close four funds related to companies of Lex Greensill? (ii) What was your understanding of the reasons for these fund closures? (iii) Credit Suisse undertook an investigation into the Greensill incident, correct? (iv) What were the conclusions reached by Credit Suisse’s investigation? (v) Are you familiar with the Swiss Financial Market Supervisory Authority or “FINMA”? (vi) You understand that FINMA brought enforcements proceedings against Credit Suisse in connection with the Greensill incident, correct? (vii) What is your understanding as to why FINMA brought enforcement proceedings? 13 FILED: NEW YORK COUNTY CLERK 06/27/2023 06:50 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/27/2023 (viii) There was an investigation of Credit Suisse in 2018 relating to Greensill, correct? (ix) What do you remember about that investigation? (x) What was the result of the investigation? (xi) Did the Credit Suisse Board of Directors take any actions with regards to risk oversight following the 2018 investigation? (xii) Turning back to the 2021 investigation, do you have any basis to dispute FINMA’s recent finding that Credit Suisse seriously breached its supervisory obligations in connection with Greensill with regard to risk management and appropriate organizational structures? (xiii) Are you aware that “FINMA concluded that Credit Suisse Group seriously breached its supervisory duty to adequately identify, limit and monitor risks in the context of the business relationship with Lex Greensill over a period of years”? (xiv) Do you have any basis to dispute FINMA’s conclusion that Credit Suisse Group seriously breached its supervisory duty to adequately identify, limit and monitor risks in the context of the business relationship