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15-2664 

Guerrini v. Atmel Corp.

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 ASUMMARY ORDER@). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

27th 4 day of June, two thousand sixteen. 

5 

6 PRESENT: DENNIS JACOBS, 

7 GUIDO CALABRESI, 

8 REENA RAGGI, 

9 Circuit Judges. 

10 

11 - - - - - - - - - - - - - - - - - - - -X 

12 JEAN YVES GUERRINI, individually and on 

13 behalf of all other persons similarly 

14 situated, LFOUNDRY ROUSSET SAS, 

15 Plaintiffs-Appellants, 

16 

17 -v.- 15-2664 

18 

19 ATMEL CORP., ATMEL ROUSSET SAS, 

20 LFOUNDRY GMBH, 

21 Defendants-Appellees. 

22 

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24 

25 FOR APPELLANTS: PHILIPPE JEAN JOSEPH PRADAL 

26 (Lauren A. Marshall, on the 
2

1 brief), Pradal & Associates PLLC, 

2 New York, NY. 

3 

4 FOR ATMEL APPELLEES: MICHAEL LACOVARA (Samuel J. Rubin, 

5 on the brief), Freshfields 

6 Bruckhaus Deringer US LLP, New 

7 York, NY. 

8 

9 FOR LFOUNDRY APPELLEES: GREGORY F. HAUSER, Wuersch & 

10 Gering LLP, New York, NY. 

11 

12 Appeal from a judgment of the United States District Court 

13 for the Southern District of New York (Swain, J.). 

14 

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

16 DECREED that the judgment of the district court be AFFIRMED. 

17 

18 Plaintiffs Jean Yves Guerrini and LFoundry Rousset SAS 

19 appeal from the judgment of the United States District Court 

20 for the Southern District of New York (Swain, J.) dismissing 

21 for forum non conveniens their complaint asserting principally 

22 claims under RICO against defendants Atmel Corp., Atmel Rousset 

23 SAS, and LFoundry GmbH. We assume the parties’ familiarity 

24 with the underlying facts, the procedural history, and the 

25 issues presented for review. 

26 This action arises out of the sale of a manufacturing 

27 facility in France from Atmel Rousset, a French company (and 

28 a subsidiary of Atmel, a California corporation), to LFoundry, 

29 a German company. After the sale, the facility was operated 

30 by LFoundry Rousset, a French subsidiary of LFoundry, which 

31 employed Guerrini and over 700 other French workers. A few 

32 years after the sale closed, a bankrupt LFoundry Rousset 

33 initiated liquidation proceedings in France, and fired most of 

34 its employees (those terminated comprise the putative class). 

35 Guerrini and LFoundry allege that Atmel and Atmel Rousset 

36 conspired with LFoundry to fraudulently convey the 

37 manufacturing facility to a nearly insolvent LFoundry, 

38 virtually guaranteeing the bankruptcy of LFoundry Rousset, and 

39 did so to avoid French labor laws that would have required that 

40 Atmel Rousset compensate the former employees of the facility 

41 were Atmel Rousset to shut down the facility itself. 
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1 The plaintiffs filed a complaint in the Southern District 

2 of New York, alleging principally that the defendants’ 

3 fraudulent scheme violated RICO. The plaintiffs sought and 

4 received limited jurisdictional discovery in advance of the 

5 defendants’ motion to dismiss on, inter alia, the ground that 

6 France is the more appropriate forum for this litigation. 

7 Based on the pleadings and affidavits, the district court 

8 conditioned dismissal of the complaint for forum non conveniens 

9 on the defendants’ written consent to jurisdiction in France. 

10 After the defendants provided the requisite written consent, 

11 the district court dismissed the complaint. The plaintiffs 

12 appealed. 

13 We generally review the dismissal of a case on the basis 

14 of forum non conveniens for abuse of discretion, Iragorri v. 

15 United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc), 

16 unless the dismissal is based on a forum selection clause, in 

17 which case we review the decision de novo, Phillips v. Audio 

18 Active Ltd., 494 F.3d 378, 384 (2d Cir. 2007). See Martinez 

19 v. Bloomberg LP, 740 F.3d 211, 217 (2d Cir. 2014). 

20 1. While a forum selection clause is typically presumed 

21 to be enforceable, that is only true if the claims in question 

22 are encompassed by the forum selection clause. Phillips, 494 

23 F.3d at 386-87. The plaintiffs argue that the district court 

24 erred in failing to enforce the forum selection clauses 

25 contained in a variety of contracts related to the sale of the 

26 manufacturing facility that identify New York as the exclusive 

27 forum for disputes arising thereunder. LFoundry Rousset is a 

28 party to two of these contracts and the defendants are party 

29 to all five of them; but the plaintiffs do not allege that any 

30 of the contracts have been breached. Because the plaintiffs 

31 do not bring contract claims, the district court concluded the 

32 forum selection clauses were irrelevant. We agree. 

33 The gravamen of the plaintiffs’ complaint is that the sale 

34 of the manufacturing facility from Atmel Rousset to LFoundry 

35 was a fraudulent conveyance, designed to deny compensation to 

36 LFoundry Rousset and its employees. This suit has nothing to 

37 do with the contracts the plaintiffs have identified. Indeed, 

38 if their claims to void the sale were construed to sound in 

39 contract, the contract to that sale does not contain a forum 
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1 selection clause. The district court correctly rejected the 

2 plaintiffs’ attempted invocation of the forum selection clauses 

3 found in ancillary contracts. 

4 2. Courts must determine and weigh three factors for forum 

5 non conveniens challenges: (i) the degree of deference due to 

6 the plaintiffs’ choice of forum; (ii) whether an adequate 

7 alternative forum exists; and (iii) the balance of public and 

8 private interests implicated in the choice of forum. Iragorri, 

9 274 F.3d at 70-74. The plaintiffs argue the district court 

10 abused its discretion with respect to each of the three factors. 

11 We disagree. 

12 The district court’s well-reasoned opinion identified and 

13 applied the three-part Iragorri test. We agree with the 

14 district court that: (i) the plaintiffs’ choice of New York was 

15 entitled to little weight because New York was plainly chosen 

16 for a tactical advantage and this suit has little to do with 

17 New York; (ii) France is an adequate alternative forum because 

18 French courts tolerate claims like those brought by the 

19 plaintiffs and the defendants expressly consented to 

20 jurisdiction there; and (iii) the private and public interest 

21 factors strongly support adjudication in France because the 

22 locus of operative facts is in France and France has a far 

23 greater interest in the litigation than does New York. 

24 Accordingly, and finding no merit in the plaintiffs’ other 

25 arguments, we hereby AFFIRM the judgment of the district court. 

26 FOR THE COURT: 

27 CATHERINE O’HAGAN WOLFE, CLERK 

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