At a hastily arranged evening news conference on November 19, 2018, Nissan Motor Company CEO Hiroto Saikawa revealed to a stunned press corps that Carlos Ghosn, the most celebrated executive in the automaker’s history, and American Greg Kelly, a Ghosn ally on Nissan’s board, had been arrested earlier in the day.
Saikawa failed to mention that he had been directly and personally involved with discussions that would become the basis of the main charge against Ghosn and Kelly – concealing Ghosn’s planned post-Nissan compensation package.
In fact, he could have put this entire matter to rest then and there with some truthful remarks explaining that there was no compensation package. There were only proposals, as confirmed by Kelly’s much-anticipated testimony on May 12.
Ghosn himself has not testified in court. Alleging that the prosecutors were in league with a “Japan First” element inside Nissan in a plot to end the French-Brazilian-Lebanese executive’s sway over a Japanese company – and thus that he could not get a fair trial – he fled Japan in a daring escape at the end of 2019.
But now, in an exclusive interview with Asia Times and Ward’s Automotive from exile in Beirut, Ghosn, who turned 68 in March, has added details and context to the compensation issue that’s at the heart of Kelly’s trial.
In the nearly one-hour interview, he dealt at length with a reported 9.3 billion-yen retirement compensation package that he and Kelly were alleged to have hidden from both Nissan’s board and Japanese regulators.
This package, which is valued at US$94 million based on average annual exchange rates, is the centerpiece of the prosecution’s case against Kelly and constitutes the first two charges against Ghosn, which prosecutors revealed in their December 2018 and January 2019 charging documents.
It represents nearly 50% of what Ghosn’s salary would have been had he not taken a voluntary pay cut in 2010 during a difficult business period for the company
Kelly’s lawyers have argued that no package was ever approved and that there were only proposals. They presented, for the first time it had been seen by anyone not involved with the case, a 2015 document that clearly indicated Ghosn had not signed off on a secret compensation package, as alleged. Kelly and Saikawa did sign off, knowing that three signatures were needed before the proposal could be taken to the board for approval so it could become effective.
The prosecutors and Nissan knew about the document as early as November 19, 2018, the day Kelly and Ghosn were arrested, because Nissan’s lawyers had raided Ghosn’s office in Beiruit, also on November 19, and – without a warrant – had taken his computer and hard drives, which Ghosn said contained a record of the document in question.
Interviewed via Zoom on May 21, Ghosn declared that there was no compensation package. “There was a proposal for after retirement that was not decided and not defined and should have gone to the board after my retirement,” he explained.
“It would have been proposed by Nissan directors who would say, ‘Look, we discussed it with Carlos Ghosn’ – and they agree with this: ‘It is one way to keep him totally tied to the company so we can use his services for the long term and avoid him working for another organization.’”
So no decision was ever made?
While Ghosn acknowledged there had been discussions about possibly extending him shareholder appreciation rights, he said that was not included in the Saikawa-Kelly proposal, which was limited to some sort of future work arrangement with Nissan, including possibly consulting. Also included would have been his signing a nondisclosure agreement, he said.
Thus, he would have been prohibited from working for a competing company had he chosen to leave Nissan – he had turned 60 in 2014 – or, of even greater concern, when his contract or mandate with Renault SA, Nissan’s largest shareholder, which Ghosn also served as CEO, came up for renewal in February 2018. That negotiation was expected to be difficult with a strong possibility of Ghosn leaving the company.
The problem dates back to 2010 when Ghosn voluntarily took a 50% pay cut that lowered his annual salary to 1 billion yen, about $9 million today. Several factors led him to make the decision including new disclosure guidelines for executive compensation. But Ghosn also noted that the Japanese business outlook was weak and Nissan was struggling. Thus he felt he had no choice.
Nissan had reported a 137.9 billion yen ($1.2 billion) operating loss in fiscal 2008. While fiscal 2009 was looking better, profit margins were still not where they needed to be.
“I thought the Japanese public wouldn’t understand my compensation, and internally I needed everybody to be motivated and aligned on our recovery. So I decided voluntarily and without pressure to reduce my compensation – and, then, let’s see what happens.”
It also was an open secret that in 2009 the Obama administration’s auto industry task force had reached out to Ghosn to become CEO of bankrupt General Motors Corp. Kelly noted in his testimony that Ghosn was a “retention risk” – an opinion shared by former Nissan chief operating officer Toshiyuki Shiga, who testified earlier in the year in the Kelly trial.
“Obviously, there had been a lot of brainstorming,” said Ghosn. “What was agreed by the two representative directors Greg Kelly and Saikawa – they signed a document, both of them – was a proposal. And this signed document was not executional because to be executional it has to have my signature, number one.”
Ghosn doesn’t actually have the document in his possession as it was taken from his office on the day of his arrest 30 months ago.
Secondly, he said the proposal would have had to go to the board “because the two representative directors could not make a decision on behalf of the board. They had to inform the board, they had to have the approval of the board, and then it would have been executional.”
Ghosn’s explanation about process comports with the procedures Nissan had in place for deciding executive compensation. The general shareholders’ meeting decides the maximum amount of compensation for directors and statutory auditors, including Ghosn’s. Then the board decides the compensation for each director and auditor based on a recommendation by the CEO (Ghosn until 2017, then Saikawa) after consulting with the representative directors.
The 9.3 billion yen, or $94 million, amount that the prosecutors are disputing in the Kelly case is what Ghosn would have earned anyway had he not voluntarily taken a pay cut. Compare that with nearly $8 billion in market capitalization that Nissan has lost since his arrest and removal from management.
17 months a free man
Now, 17 months have passed since his sensational escape from Japan’s notorious “hostage justice” system.
Having access to some of the records that were kept from him earlier, Ghosn believes that ultimately it was not the compensation issue that turned a small faction of Nissan’s senior Japanese management against him. He believes it was fears that the French government wanted to take over Nissan and make it, in some form or other, a subsidiary of Renault.
In a book co-written with French journalist Phillippe Riès and published in December, Le Temps de la Verite: Carlos Ghosn Parle (Time for the Truth: Carlos Ghosn Speaks), Ghosn says that the French government’s decision to shut out Nissan from having voting rights on Renault’s board in 2015, while doubling the French government’s representation (both held 15% equity) served as a “wakeup call” for the Japanese.
Also, as Ghosn had feared, it “had big repercussions in Japan because the Japanese side thought I betrayed them, which I didn’t.”
Then in January 2018, an even more explosive development occurred when the French government informed the Japanese government that it intended to integrate Nissan’s and Renault’s management. In response, Japan’s Ministry of Economy, Trade and Industry (METI) sent a letter opposing the move to France’s Ministry of the Economy and Finance.
Talks between the ministries and France’s Agence des participations de l’État – the Government Shareholding Agency, which officially owned the shares – resulted in no decisions.
Nevertheless, Ghosn believes the die had been cast for his removal. And in February, a small faction operating oblivious of board oversight and including one of Nissan’s statutory auditors, Hidetoshi Imazu, launched a secret probe to find dirt on him.
Among those involved, in addition to Imazu, were Toshiaki Ohnuma, who headed Nissan’s secretariat office, and a former vice-minister of international affairs at METI, Masakazu Toyoda. Joining later would be Hari Nada – who was number two in Nissan’s legal department under Kelly – and much later, according to court testimony, Saikawa.
Imazu, Ohnuma and Saikawa have since retired, Saikawa under a cloud after admitting he had been improperly overpaid along with several other executives.
Hari Nada, despite copping a plea, possibly to avoid prosecution himself, has been promoted to senior vice-president. Toyoda was looking for a job in early 2018, his third post-government-retirement “descent from heaven” (amakudari) sinecure coming to an end at Murata Manufacturing Co. He would join Nissan’s board in June as an outside director. He currently heads the outside director group.
Interview requests to both Nada and Toyoda were politely refused.
Ghosn in the interview shared his views about the coup and its effects. He was critical of those who organized it while homing in on the obvious bottom line: All three alliance partners – Renault, which owns 43% of Nissan; Nissan, which owns 34% of Mitsubishi Motors Corp; and Mitsubishi Motors itself – reported near-record losses in 2020.
Combined operational losses of the three Alliance companies totaled more than $4.5 billion. Net losses exceeded $17 billion.
The damage to the alliance “is enormous,” declared Ghosn. “And the responsibility of this group of people inside Nissan, the prosecutors of Tokyo and the government of Japan for the demise of Nissan is huge. And it is not only Nissan. Look at Mitsubishi. Mitsubishi was in the middle of a recovery in 2017 and 2018. Look what happened to them in 2020. And look what happened to Renault.”
”What they have organized is a crime,” he said. “Unfortunately, because there are so many accomplices, it’s a crime that everybody has an interest in not making too much noise about.”
French government complicity
“The French government played Don Quixote at the beginning by saying: ‘We want the alliance to be this, we want the alliance to be that, and we want to it be irreversible,’” he said. “In the end, they accepted something that had nothing to do with this or that. ‘Just please continue to talk to us (to the Japanese government),’ and ‘Please let’s not stop faking that we were still working together,’ after my arrest. And you see the results.”
Given that Nissan’s business began to weaken months before Ghosn’s arrest, then cratered immediately after, we asked him if he had been planning to fire Saikawa, whom he had previously handpicked as his successor as CEO.
“I wanted to fix management because I was not happy with the performance of the company. Obviously, I put Saikawa under a lot of pressure by saying, ‘Look, your growth is slowing. Your profits are slowing. There is a lot of in-fighting in the management team.’
“It was known that he and José Muñoz” – who was Nissan’s chief performance officer in charge of its China business – “were not on good terms. So I said, ‘Look, you need to come up with a plan to fix all of this or I’m going to have to find a different way.’
“I was not about to fire him, but he knew he was on very shaky ground because in the end a CEO cannot stay in the job if the performance of the company is not good or if it’s deteriorating and there is no solution in sight.”
Imazu in his court testimony said Saikawa was a latecomer, not involved in the planning of what Ghosn and others call a coup until October 2018, the month before Ghosn and Kelly were arrested.
Asked about this, Ghosn replied: “Is it possible Saikawa was only put in the loop in October? I’m not sure. What I can tell you is that the coup had probably been [in preparation] since February 2018. If they only brought Saikawa in late, it’s because they were afraid he would tell me something because they were about to make their move.
“They probably told him, ‘You are involved in this [compensation issue]. So you have two choices. You’re either going to join him in being indicted, or you’re going to charge him. You’re going to participate with us to get rid of him, or you’re going to join him.'”
“Saikawa’s hand was on everything” that Kelly was involved in, Ghosn said. “Kelly was arrested. He went to prison. He’s on trial. Saikawa did exactly the same things. He signed the same document. He participated in the same discussions. The only difference is that Saikawa is Japanese. The other guy is not. Saikawa decided to say, ‘Okay, I’m ready to help you and save my skin.'”
Fair trial prospects in Japan
“I was facing four to five years of trials,” Ghosn said. “Look at Greg Kelly. He has one charge and he’s still on trial. They’re saying that the judgment may happen in 2022, which means, since he was arrested in November 2018, his [case] will have taken more than three years for this bogus charge as [US Senator Roger] Wicker said to the Senate last September.
“More than three years in Japan for his trial. So you can imagine what would have happened to me: five, six, seven years. Then after that, obviously the intention was to find me guilty of something, so easily another five to 10 years. I would have died in Japan.”
Phillippe Riès has reported that Ghosn made the decision to flee Japan when the judges in late November 2019 denied him the right to meet his wife during the Christmas holiday.
Not only did a bail agreement come with a clause forbidding him from meeting with wife Carole – a strong and outspoken advocate for his cause – but the prosecutors would be permitted to try Ghosn and Kelly separately, the second trial beginning after the first was completed.
Silenced, family threatened
In late March 2019, the Foreign Correspondents’ Club of Japan was in negotiations with Ghosn’s lawyers to have him speak at the club to tell his side of the story.
He had already served 109 days in solitary confinement at the Tokyo Detention House (where doomsday cultist Shoko Asahara had been executed eight months earlier); had been subjected to regular four-hour-and-longer daily interrogations – with no lawyer present and, during much of that time, without being informed of the charges, a constitutional violation in Japan; and was out on 1 billion yen ($9.1 million) bail, among the highest bails ever set in Japan.
Early on the morning of April 3, police stormed his Tokyo apartment where his wife, Carole, and daughter, Maya, were present and re-arrested him. During the arrest, they took Carole’s computer and cell phones – and her Lebanese passport, forcing her to seek help from the French ambassador. The prosecutors added new charges.
He was granted bail again 21 days later, on April 24. But his news conference at the Foreign Correspondents’ Club of Japan would not occur.
“The day I wanted to speak” at the FCCJ, he sums up, “they put me back in prison. And then after I was freed again, they sent me a clear message. ‘Look, if you want to ever speak again, then you’re going to come back to prison. So the only way for me to speak was to escape.
“Without any doubt, I knew escaping was the only way for me to tell the reality of what I lived through and give myself a chance to be vindicated in terms of my reputation, my rights, my legal rights, etcetera, because I was totally under control in Japan.”
We did not ask Ghosn about his escape, having been advised that he would decline to comment to protect others who were involved.
Guilty until proven innocent
After his escape, for Nissan and the prosecution “things started to unravel,” Ghosn said. “People started to talk. We started to see much more detail in what took place.”
In what the Japanese Justice Ministry tried to spin as an innocent gaffe by former Justice Minister Masako Mori when she said, less than two weeks after Ghosn’s late-December 2019 escape, that he should come back to “prove his innocence,” was seen as a telling sign. Mori’s slip of the tongue was clearly more Freudian than she cared to admit.
And she obviously wasn’t watching her prosecutors.
Mississippi Senator Roger Wicker characterized their treatment of Kelly as “unfair, harsh, arbitrary and cruel,” then added in a September speech on the floor of the US Senate at the start of the Kelly trial: “I have zero confidence that the Japanese criminal justice system will give Mr Kelly a fair trial. The fix was in for him from the beginning.”
Mississippi is one of two US states that have Nissan plants.
Ghosn’s own words tell his story of the prosecutors trying to extort a confession from him.
“Look,” he said, “the prosecutor who was interrogating me in Japan was telling me all the time, ‘Mr Ghosn, you need to confess because if you do not confess, it’s going to get worse for you.’ It didn’t work. So he said, ‘Okay, if you don’t confess, it’s going to be bad for your wife. We’re going to go and try to find something” on her. “He clearly mentioned her.
“And then he said, ‘You need to confess for your children,’ and then ‘for your sisters. You need to feel responsible for your family. If you confess, you can avoid lots of problems.’ He said it.
“So when I said to the press, ‘Please go ask for the [interrogation] tapes; the tapes are in the hands of the prosecutors,’ the prosecutor refused to deliver the tapes – with the explanation that there is a lot of sensitive information on them.
“Obviously there is a lot of sensitive information,” Ghosn said – including “the prosecutors forcefully extracting confessions.”
Note that in covering the extradition case against Michael and Peter Taylor, a father-and-son pair accused of spiriting Ghosn out of Japan, we had found documents in the US court record that appear to support Ghosn’s contention that the Japanese prosecutors had targeted his children.
Due to time constraints in the interview, we touched only briefly on other legal questions including, for lack of a better term, breach of trust issues involving Ghosn’s alleged misuse of the CEO reserve fund or unauthorized payments to a Middle Eastern car dealership.
However, Ghosn said he had new information to support the aggressive defense he made at his January 8, 2020, news conference in Beirut.
“We have the French prosecutors coming to interview me in Lebanon,” he added. “It was voluntary from my part. They said they want to interview me. I said, ‘Yes. You are welcome. You should have come much earlier before all these accusations were starting to fly around in the press.’”
Is he willing to meet the Japanese prosecutors any time in Lebanon?
He volunteered a sharp rebuke of a Dutch court for ruling on May 20 against his wrongful dismissal claim and ordering him to pay nearly 5 million euros ($6.1 million) to Nissan-Mitsubishi BV, a joint venture between the two principal Alliance partners. Ghosn had been seeking 15 million euros ($18.2 million) in damages.
The court argued that he didn’t have an employment contract between April and November, 2018, the period in question. He was voted off both Nissan’s and Mitsubishi’s boards, where he sat as chairman, shortly after his November 2018 arrest.
“This was very disappointing,” he admitted, “particularly after we proposed many times that they question me so that I could explain the situation exactly. They did not want to question me or any other key witnesses. In the end, they made the judgment based on a technicality.
“So what does the ruling mean? There was no contesting that I worked. There was no contest that I got results and deserved whatever compensation I had received. But they decided [based] on a technicality. And guess who prepared all the documents involving this technicality? Hari Nada.”
Ghosn said the court had been told of Nada’s involvement in the plot. “So we are going to appeal,” he said, adding that “I really think we can’t let machinations like this prevail. They may end up prevailing. I don’t know. But we can’t be passive. We need to fight for what we believe in and to establish the truth.
“And the truth was that I worked and got results and that I was compensated for the work and the results. That’s the truth. Anything else, which is a technicality prepared by people who were involved with the plot, needs to be found.” Exposing such machinations is “what we’re going to do.”
Does Ghosn believe that he will eventually be vindicated?
“I don’t know,” he said. “I don’t know what’s going to be the outcome. But what I know is I’m going to fight for my rights. I’m going to fight for my reputation. I have already published two books. I will be participating in some documentaries to reveal the truth, and I will be fighting for my rights in different courts. I intend to do everything I need to.”
And, he added: “Frankly, the last thing I want is for these thugs to win. That would be terrible if machinations and lies win. I already lost a lot, but I would lose even more if I accept that outcome.”
Final thoughts on Kelly
“The only charge against him is complicity in a ‘non’-declaration of compensation that was neither decided nor paid,” Ghosn said of Greg Kelly. “Frankly, I don’t understand what he can be guilty of because nothing was decided. The proposal didn’t go to the board. And so long as it wasn’t decided, he didn’t have to inform the shareholders about something that he wasn’t sure I would formally agree on.”
Ghosn remains pessimistic despite the fact Kelly’s lawyers have destroyed key parts of the prosecution’s case by showing clear conflicts among several former and current Nissan executives – who weren’t charged, while enforcers singled out two foreigners and no Japanese.
“You’re in Japan,” he said. “So you can destroy anything you want. But at the end of the day, the score is 99.4% conviction. The judges are just a kind of an appendage of the prosecutor. And they certainly don’t want a foreigner who is pleading innocent to be [found] innocent. This would be the end of a long tradition.
“I have no doubt that Greg Kelly is innocent. He should be free. I hope some big miracle would lead the judges to this decision.”
Coming soon: Part 2, the future of the Renault-Nissan Alliance and the future of Carlos Ghosn. Roger Schreffler is a veteran correspondent for Ward’s Automotive and a former president of the Foreign Correspondents’ Club of Japan.