Davis v. Scottish Re Grp. Ltd.

*1  On remittitur from the Court of Appeals (30 NY3d 247 [2017]), plaintiff appeals from the order of the Supreme Court, New York County (O. Peter Sherwood, J.), as amended, entered on or about October 15, 2014, to the extent it dismissed the seventh, ninth and tenth causes of action for lack of standing.*2

This matter was remitted to this Court by the Court of Appeals to determine whether plaintiff, an owner of ordinary shares in defendant Scottish Re Group, Limited (Scottish Re), a Cayman Island company, has standing to assert derivative claims against the company’s directors and investors under Foss v. Harbottle ([1843] 67 Eng Rep 189, 2 Hare 461) (Davis v. Scottish Re Group Ltd., 30 NY3d 247 [2017]). Supreme Court dismissed the derivative causes of action on the ground that plaintiff did not establish standing under Cayman Islands law because he did not seek leave of court to commence a derivative action as required by Rule 12A of the Rules of the Grand Court of the Cayman Islands; the Court also found that plaintiff did not have standing because Cayman Islands common law does not allow derivative claims by individuals, with certain exceptions, as set forth in Foss. This Court modified on unrelated grounds. We agreed with Supreme Court that plaintiff’s noncompliance with Rule 12A mandated the dismissal of the derivative claims (138 AD3d 230 [1st Dept 2016])¹. The Court of Appeals, however, held that Rule 12A is a procedural rule and therefore does not apply in New York courts (30 NY3d at 253-254). We now conclude that plaintiff does not have standing under Foss, and we affirm the dismissal of the derivative causes of action on that ground.Under Cayman Islands law interpreting Foss, “derivative claims are owned and controlled by the company, not its shareholders” Winn v. Schafer, 499 F Supp 2d 390, 396 [SD NY 2007]). Thus, “a shareholder is not permitted to bring a derivative action on behalf of that company” (id.; see also Shenwick v. HM Ruby Fund, L.P., 106 AD3d 638, 639 [1st Dept 2013]).Cayman Islands law recognizes only four narrow exceptions to the Foss rule: “(1) if the conduct infringed on the shareholder’s personal rights; (2) if the conduct would require a special majority to