NIssan board member Masakazu Toyoda was instrumental in Carlos Ghosn's fall. Photo: Twitter

This is the concluding part 4 of a series. Read part 1 herepart 2 here and part 3 here.

Carlos Ghosn didn’t see it coming. No one could have foreseen, really, that a retired bureaucrat – eight years removed from his final government job and with little management experience – could come in and reshape one of the crown jewels of Japanese industry with almost no one taking notice.

The rise of Masakazu Toyoda, a former bureaucrat at Japan’s Ministry of Economy Trade and Industry, has been amazing to watch. Literally without a job in early 2018, Toyoda is now arguably the most powerful director on Nissan’s board except possibly the president, Makoto Uchida.

More relevant than the speed of his rise within the company is the imprint he’s left on Nissan’s management structure: changing the composition of the automaker’s board from one dominated by auto industry careerists, people with decades of experience, to one that has little connection to the business they’re supposed to manage.

“It is almost as if they’ve tried to do the opposite of what Ghosn did when he came to Japan,” said Ravinder Passi, Nissan’s former global legal counsel who was forced to leave the company while trying to warn the board about serious conflicts of interest in the Carlos Ghosn investigation.

Illustrating the contrast clearly, Ghosn early in his tenure brought to Nissan a rising star in Renault’s product planning organization, Patrick Pelata, and a respected member of the French automaker’s finance team, Thierry Moulonguet, to complement the existing Japanese management team. He also brought more than two dozen senior managers from Renault.

Post-Ghosn Nissan, in contrast, has brought in seven people to be outside directors, only one of whom had any experience in auto management. Of the three directors who have had careers in the auto industry, none has executive experience in North America and only one, the automaker’s new COO, Ashwani Gupta, has experience in Europe.

Along with his team of industry outsiders, the now-72-year-old Toyoda, as head of the board nomination committee and member of the influential audit committee, appears focused more on governance than on cars.

The former METI bureaucrat rose to the rank of vice-minister for international affairs in 2007. Following his retirement the following year, thanks to the Japanese bureaucratic tradition of amakudari or descent from heaven, he made the rounds working in one­-year and two­-year contract jobs in both government and the private sector

He was introduced to Nissan in February 2018 by Hitoshi Kawaguchi, who headed Nissan’s corporate communications and government affairs division and recommended him for an outside director’s position. Nissan would be his fifth, sixth or seventh post­-retirement sinecure, depending on how one counts.

Hitoshi Kawaguchi. Photo: The National

Toyoda would join Kawaguchi (who had close ties with the Japanese prime minister, Shinzo Abe, and Abe’s successor, Yoshihide Suga) and three other rogue executives in secretly investigating Ghosn and planning his ouster. The three include Hari Nada, who ran the CEO office and is Ghosn’s main accuser; Hidetoshi Imazu, a statutory auditor; and Toshiaki Ohnuma, head of the Secretariat office.

They would bring Nissan’s then-CEO, Hiroto Saikawa, into the planning in October 2018, according to court testimony in the separate trial of Ghosn’s former board supporter Greg Kelly.

Their main initial motive was to block Renault SA, Nissan’s largest shareholder, from integrating Nissan and making it a subsidiary.

No one had any idea – especially Ghosn, who was completely blindsided when he found out – that Nissan would be transformed almost overnight into a company that is a “vassal of the Japanese state,” to quote one longtime observer.

“I knew [bringing him in] was a way to recycle former senior officials,” he said in a book to be published this month, Broken Alliances: Inside the Rise and Fall of a Global Automotive Empire, coauthored by French journalist Philippe Riès. “I wasn’t suspicious. I met Toyoda. He fitted the mold. That made people happy. So, why not? But, as is obvious now, he was on a mission.”

Photo courtesy of Tanooki Press

Ghosn later characterized Toyoda as “the brains” behind the coup.

Toyoda formally joined Nissan’s board on June 26, 2018, along with Keiko Ihara, a former race car driver who, like Toyoda, has little management experience. Toyoda now heads the majority group of outside directors, chairs the board’s nomination committee and serves on the supposed watchdog audit committee.

We don’t know how frequently he met with other members of the group through the summer and into the fall of 2018. Nissan won’t make him available to be interviewed.

But we do know, based on public records, that he has been involved with every major decision to change Nissan’s governance structure and management – while failing at his most fundamental job as a “governance” reformer ­to tell Nissan shareholders the truth about the coup.

He can’t, of course – because he was part of it.  But until he does and comes clean with Nissan investors, it is unlikely Nissan can move on from the Carlos Ghosn debacle.

The timeline below shows how mired in the past Nissan remains – and in particular, it illustrates what happens when two people with clear conflicts of interest – Toyoda and Nada – remain involved with making decisions that involve significant disbursements of company money.

British Finance Minister Alistair Darling (right) chats with then-Nissan Motor Executive Vice-President Hidetoshi Imazu beside crossover vehicle Dualis, the Japanese market version of the British-built Gashqai, as he visits Nissan headquarters in Japan in 2008. Photo: AFP / Toru Yamanaka

2018

  • On June 16, 2018, Hidetoshi Imazu, Nissan’s statutory auditor, went to the Tokyo prosecutors office rather than to the board with his concerns about Ghosn, according to a courtroom report of Imazu’s testimony in the Kelly trial, which ran in Automotive News. The prosecutors’ office, according to the report, told him not to inform the board, which he was required to do by law in Japan. Instead, Imazu continued to exchange information with the group that wanted to oust Ghosn.
  • On June 26, 2018, Toyoda joined Nissan’s board, his nomination approved at the annual general shareholders meeting.
  • Date unknown: A law firm, Latham & Watkins, began assisting those who sought to remove Ghosn.
  • On October 11, as reported by Greimel and Sposato, Imazu informed Saikawa of the plan to remove Ghosn and of the personal decision he had made to bring in the prosecutors’ office.
Hidetoshi Imazu. Photo: WardsAuto
  • The plotters brought Saikawa into their planning, according to Greimel and Sposato. And as hard as it might be to believe – in view of his position as CEO – that Saikawa didn’t learn sooner, Ghosn believes that could be true. “Is it possible Saikawa was only put in the loop in October? I’m not sure,” Ghosn said in our May interview. “What I can tell you is that the coup had probably been planned since February [2018]. If they only brought Saikawa in late, it is because they were afraid he would tell me something because they were about to make their move.
  • Saikawa subsequently, also in October, instructed Christina Murray, head of Nissan’s audit and compliance team, to conduct an internal investigation into Ghosn’s compensation and expenses. Ravinder Passi, the automaker’s global general counsel, and Manabu Sakane, a vice-president for corporate governance, joined her team. Sakane, an engineer, had no governance experience.
  • Working with Murray and her team was a lawyer in the Tokyo office of Latham & Watkins. Murray’s team, according to Passi, was unaware that the firm had also been working with Nada and others to plan the events of the coming big day.
  • In late October of 2018, Nada told Murray and Passi about his plan to involve the Tokyo prosecutors’ office in removing Ghosn from management. We’ve been told that Nada was cavalier, even boastful, about the prospect of Ghosn’s being arrested. Although it was on October 31, 2018, that Nada reportedly reached the plea agreement that gave him immunity from prosecution, Passi suspected that Nada had begun cooperating with the prosecutors much earlier.
  • On November 19, 2018, Ghosn and Kelly were arrested and taken to the Tokyo Detention Center without being charged. Outside Japan, according to Ghosn, Nissan and lawyers from Latham & Watkins conducted coordinated raids on Ghosn’s residences in Beirut, Amsterdam, Rio de Janeiro and Paris, all without warrants, and took personal papers, computers and mobile devices. The law firm did not respond to our request for comment.
  • Within 48 hours of Ghosn’s arrest in Tokyo, the US Securities and Exchange Commission contacted Nissan. There is some confusion about when the SEC then formally began its investigation into Nissan. Several major media organizations reported in January 2019 that the agency had launched an investigation. Our source informs us that it dated from late November or early December of 2018.
  • Nissan – upon receiving, we were told, a pre-announcement advisory that the agency was planning to launch an investigation – sent a directive from its Yokohama headquarters to Nissan employees at Nissan North America in Franklin, Tennessee, telling them to move documents related to executive compensation out of the country. An estimated 10 boxes of documents were moved out of Tennessee by the following day in late November or early December. A whistle-blower filed a criminal complaint charging that Nissan thus tampered with evidence.
Nissan North America Headquarters in Franklin, Tennessee. Photo: Nissan
  • On November 22, 2018, the seven remaining members on Nissan’s nine-­member board, including Toyoda, voted to remove Ghosn and Kelly from the board and empower the three outside directors – again, including Toyoda – to “study” the creation of a special committee to investigate Nissan’s governance system and executive compensation. The two other outside directors were Keiko Ihara and Jean­ Baptiste Duzan. Duzan was Renault’s representative on the board.
  • On December 10, 2018, the Tokyo prosecutors’ office obtained its first of four indictments against Ghosn and its first of two indictments against Kelly, both involving underreporting Ghosn’s future compensation and violating Japan’s Financial Instruments Act. Initially, Ghosn and Kelly were charged with underreporting 5.1 billion yen (US$46 million) for the fiscal years 2010 to 2014. The prosecutors also indicted Nissan as a company. Nissan pled guilty on or shortly before December 10.
  • Also on December 10, during daytime in the United States, the Jackson County Employees’ Retirement Association, representing Nissan investors, filed a class­-action lawsuit in federal court in Nashville, Tennessee, against Nissan and six members of the automaker’s management including Ghosn, Kelly and Saikawa.
  • On December 17, responding to a proposal by Toyoda, Ihara and Duzan, the Nissan board established a seven-­member committee to look into Nissan’s governance. Panel members appointed included those three proposers (remember that Toyoda was one of the six members of the coup); co-chairs Seiichiro Nishioka, a former judge, and Sadayuki Sakakibara, the immediate past president of Keidanren, the influential Japan Business Federation; Rieko Sato, a lawyer; and Fumio Naito, a professor of business and certified public accountant.

2019

  • On January 11, 2019, Tokyo prosecutors added new charges against Ghosn and Kelly, partially by expanding the original pay-package underreporting charge to include 4.3 billion yen ($39 million) for fiscal years 2015 through 2017. That raised the total to 9.3 billion yen ($85 million). Note that the SEC, in its investigation, used average yearly exchange rates for the eight­-year period. Thus, the total in the SEC findings was $94 million.
  • The second charge against Ghosn on January 11 was “breach of duty” under the Companies Act for an alleged money-­laundering scheme involving Ghosn and Khalid Juffali, an influential Saudi businessman, who, the prosecutors claim, underwrote Ghosn’s personal investment losses with Nissan money dating back to the 2008 financial crisis. (See lawsuit roundup section.)
  • Also on January 11, Nissan filed a criminal complaint against Carlos Ghosn in Japan for his alleged misuse of company funds based on the Tokyo prosecutors’ office’s charge of “breach of duty” involving Juffali.
  • On January 17, Renault, under pressure from the French government released the agenda for its upcoming January 24 board meeting. On the agenda was a proposal to replace Ghosn as CEO. Ghosn was still in solitary confinement in Japan with the realization beginning to sink in that he might never leave Japan’s “hostage justice” system. Renault’s lawyers, according to our sources, reached out to Ghosn’s lawyers urging him to formally “retire” so that he might be able to collect a severance allowance that consisted mostly of Renault stocks held by Renault.
  • On January 23, the day before the Renault board meeting, unable to speak directly with his lawyers in France and Lebanon and with a plexiglass barrier separating him from his Japanese lawyers at the Tokyo Detention House, Ghosn signed a proposal drafted by Renault and marked “Retirement”. We have not seen the agreement, but were assured that the issue of his severance was included. Renault declined our request for a management interview. Later that day France’s finance minister, Bruno Le Maire, revealed in a television interview that Ghosn had stepped down.
  • On January 24, Renault’s board accepted Ghosn’s resignation and formally made Thierry Bolloré CEO, replacing Ghosn. Bolloré had been serving as interim CEO. It is not clear when Renault reneged on the retirement agreement it signed with Ghosn and decided not to pay him his severance allowance, but it did. The matter is now before a court in France. At the time of Ghosn’s arrest, the value of Ghosn’s severance package – mostly stocks – was a reported 30 million euros ($36 million). It is now less, in light of a 50% fall in Renault’s share price.
  • On February 5, 2019, Nissan appointed Renault’s new chairman, Jean­-Dominique Senard, to join its board, replacing Ghosn as a board member but not as chairman. The chairman’s position would be filled in June by an outside director with no auto experience, Yasushi Kimura. Senard’s appointment became effective at an extraordinary shareholder’s meeting on April 8.
  • On March 6, Ghosn was released on bail of 1 billion yen ($9.1 million) after 109 days in confinement.
  • On March 27, Nissan’s special governance committee made recommendations to transform Nissan’s board so as to require that a majority of directors come from outside of Nissan. The committee further recommended establishing two new statutory committees: compensation, comprising only outside directors; and nomination, with a majority of outside directors. Following this move kingmaker Toyoda would take on the title and authority of chairman of the nominating committee.
  • On that same day the special governance committee, of which Toyoda was a member, also proposed changing the composition and mandate of the audit committee, requiring outside directors to be a majority, but not requiring the chair to be a professional auditor. (The new chair of the committee would be Motoo Nagai, a retired banker, with ex-bureaucrat Toyoda as a member.) The changes would take effect after the regular general shareholders’ meeting on June 25.
  • On April 3 Ghosn was rearrested, several days before the scheduled date of a news conference he had announced he would hold. A new fourth charge was added. Of course, the news conference had to be canceled.
  • On April 22 the Tokyo prosecutors office filed a second “breach of duty” charge against Ghosn, this time accusing him of pocketing $5 million from a sales subsidiary in Oman, Suhail Bahwan Automobiles LLC, between July 2017 and July 2018.
  • Ghosn was released again on April 25 on bail of 500 million yen ($4.6 million), raising his bail total to 1.5 billion yen ($13.7 million) with the condition that he was prohibited from seeing his wife.
Former Renault-Nissan boss Carlos Ghosn arrives with his wife Carole for a press conference on his reasons for dodging trial in Japan, where he is accused of financial misconduct, at the Lebanese Press Syndicate in Beirut on January 8, 2020. Photo: AFP
  • After hearing those extreme bail conditions, the Ghosns reached out to Michael and Peter Taylor, an American former Green Beret and his son, who have pleaded guilty to helping Ghosn escape on December 29, 2019, and who are currently serving time in a Japanese prison. Our sources indicate that the first contacts with the Taylors were made in May or June 2019.
  • On May 16, Kyodo News reported that Nissan had agreed to allow Thierry Bolloré, Renault’s CEO, to join the automaker’s board. Bolloré’s nomination would become official in June. His appointment, according to our sources, was conditional on Saikawa’s serving another term as CEO. Tensions were still high over Saikawa’s failure to inform Renault about the plan to remove Ghosn from management.
  • On June 9, Bungei Shunju, a respected Japanese monthly magazine, published a three-­hour interview with Greg Kelly, who revealed that Saikawa and other executives had received significant unauthorized bonuses – which was the main charge against Ghosn. According to the Financial Times’s report about the article: “Mr Kelly also revealed that Mr Saikawa had consulted Mr Kelly on whether company money could be used to purchase his new house in Tokyo in the spring of 2013. Mr Saikawa, who claimed he was short of cash, proposed that he would repay the loans Nissan shouldered on a monthly basis, but the company ultimately did not help buy the chief executive’s house. According to Mr Kelly, Mr Saikawa eventually purchased his new home by profits he made from moving back the execution date of his stock appreciation rights, which was originally set as May 14, 2013, by one week, during which Nissan shares rose 10%. As a result, Mr. Saikawa is estimated to have reaped additional gains of 47 million yen” ($438,000 at today’s rate).
The Kelly interview story picturing, top to bottom: Saikawa, Ghosn, Kelly. The ’employment agreement at the bottom left appears to be one of those signed by Saikawa and Kellly.
  • The internal investigation led by Murray quickly turned in a direction that the anti-Ghosn faction had not anticipated. Even before the Kelly revelation, Murray’s team, in its review of documents, had seen the June 2015 Kelly/Saikawa memorandum “proposing” a retirement compensation package for Ghosn – which, they also learned, had not been enacted because it had never been submitted to the board for approval. Murray immediately brought in an outside law firm, Anderson, Mori & Tomotsune LLP, one of Japan’s big four, to look into the matter. Latham & Watkins, the team felt, couldn’t interview Saikawa about the Bungei Shunju revelation because it had a conflict of interest in the case. We asked Passi, a member of Murray’s team, if he thought Kelly was innocent. “I find it troubling to see all that has happened to Greg. I find what he is charged with puzzling and cannot understand why he alone is standing in the dock, especially, when by their own admission, others were involved. One has to ask why this cruel treatment is reserved for just one person and whether this is a miscarriage of justice.”
Greg Kelly. Photo: Tennessean
  • On June 25, Nissan shareholders approved the new expanded 12­-member board with seven outside directors, most of them part-time but given full voting rights, and with Toyoda leading the outside directors’ group. Nissan shareholders also approved the new board oversight committee structure comprising mostly outside directors. The takeover was complete. The changes would take effect after the regular general shareholders meeting on June 25. The composition of the three oversight committees is relevant because these were the people brought in, none with experience in auto industry management, to fix Nissan’s governance problems. Based on two “insider” exposes – ­one by Bloomberg News and a second by The New York Times – plus our own reporting, which includes two interviews with Ghosn, my verdict is that they have failed and, in fact, have covered up significant misconduct.
  • Meanwhile in June, Nada’s continued meddling in the investigation, asking for regular updates, came to a head following the Bungei Shunju revelations.The New York Times reported,­ and we have corroborated independently,­ that Nada participated in discussions to bring criminal charges against Ghosn’s sister in Brazil, who reportedly had been hired to do consulting work for the automaker. Ghosn’s sister was president of Rio de Janeiro’s chamber of commerce. Charges were never brought. Media reports suggesting that Nada had recused himself are false, said Passi, who added: “Obviously, he had a worrying conflict of interest.” Passi was concerned that senior members in Nissan management were trying to whitewash the events of the past year and make the report all about Ghosn. Copping a plea, as Nada had done, is by definition an admission of guilt ­of a crime.
  • Separately in June, Passi retained the services of Cleary, Gottleib, Steen & Hamilton LLP and Mori Hamada & Matsumoto LLP, another of Japan’s big four law firms, to look into the conflict of interest issue. Focusing on problems with Hari Nada, the firms completed their report in mid­-July.
  • Anderson, Mori & Tomotsune completed its investigation in August and reported that Saikawa and Nada had received 47 million and 30 million yen in unauthorized compensation (nearly $430,000 and more than $270,000 respectively).
  • But it was not only Saikawa and Nada. Six other Nissan executives had received inappropriate bonuses. Included: Arun Bajaj, head of human resources; Hidetoshi Imazu, Nissan’s statutory auditor who went to the prosecutors’ office rather than to the board with his concerns about Ghosn; Itaru Koeda, Nissan’s former co-­chairman who was involved in the Ghosn compensation discussions; Toshiyuki Shiga, Nissan’s former COO who, with Saikawa, was also involved in the Ghosn discussions; and two others. As a former corporate lawyer, said when we asked him to review the record, “The conflicts of interest are staggering.”
  • On July 24, Passi sent the Gottleib and Mori Hamada “conflict of interest” memo to Toyoo Nagai, chair of Nissan’s audit committee. He received no response.
  • On or slightly before the weekend of August 24­-25, Murray, with assistance from Latham & Watkins, completed her 175-page report.
  • During the week of August 26, she gave a copy of the report to Passi for review and met with Nissan’s board, informing them that she planned to deliver the report at the September 4 audit committee meeting and again on September 9 at the board meeting.
  • On August 28, Murray delivered a copy of both her report and Anderson, Mori & Tomotsune’s report on executive compensation to Nagai, who, shortly after on August 28, ordered her to stop all investigations of Nada and ruled that she had a conflict of interest. What her conflict of interest might have been has never been made public.
Photo: Nissan
  • Murray had wanted to expand the investigation to another 60­-80 individuals who had enabled the misuse of the company’s bonus system by as many as eight directors, not counting Ghosn, or who were involved in the Ghosn and Kelly misconduct allegations. Note that we found no evidence that Ghosn ever profited from his alleged shareholder appreciation rights – no evidence that, as in the case of Saikawa, they were backdated for the purpose of enriching himself. The investigation found that Nada’s unauthorized stock options, like Saikawa’s, had been backdated by Onuma in the Secretariat office.
  • On August 30, Murray submitted her resignation with plans to leave the company on September 9. Her last day in the office was August 30. She had been seen crying in her office. She never delivered her report to the audit committee or board. Although there were media reports attributed to Nissan that Murray had been planning to leave the company, that is not true, according to a statement made by Passi in his whistleblower lawsuit in the UK. Said Passi: “Ms Murray, who had just been promoted in April, commented to me that she was astonished by Mr Nagai’s instruction and felt it had been a deliberate attempt by him to undermine her ability to perform her function as head of compliance.” We requested an interview with Nagai and were refused.
  • Murray’s 175-­page report seems to have vanished, having been removed from her office early the following week (probably September 2 or September 3) by the head of security at Nissan headquarters. Passi was ordered to turn over his copy and “all work” related to the investigation on September 13. Murray is now vice-president and compliance officer for Capital One Bank in Dallas, Texas. She did not respond to our request for comment.
Christina Murray, former Nissan auditor. Photo: Internal Audit 360
  • On September 9, 2019, the day of Nissan’s board meeting, Passi hand­-delivered an advisory to all outside directors, excluding Renault’s Bolloré and Andrew House (who was traveling), which detailed “conflict of interest” problems with Nada and Onuma. He included the report by Cleary, Gottleib, Steen & Hamilton and Mori Hamada & Matsuno. Passi asked Jenifer Rogers, the only lawyer in Nissan’s management group, to pass along House’s copy to him after the meeting. Passi also raised questions about Murray’s sudden departure on the very day she was scheduled to deliver her report, findings of a nearly year-long investigation, as well as concerns about independence and bias when individuals with agreements with the Tokyo prosecutors office (Nada and Onuma) were involved with investigating themselves.
  • At the September 9 meeting, the board focused on Saikawa’s 47 million yen ($425,000) in undisclosed compensation and put pressure on him to resign, which he would do the following week. There was no discussion of the various issues raised by Passi (who was in the boardroom for the meeting), including his finding that Nada was “substantially involved in the underlying misconduct” at the center of the investigation, had a plea deal, “thus is a material witness to the prosecution case against Ghosn” and “benefited personally from shareholder appreciation right stocks.”
  • Later that day, the audit committee and board whitewashed the findings of the internal investigation in their news release to the press. Kawaguchi, one of the coup members, was still head of corporate communications, so the summary report would have had to pass through him. “With the exception of Ghosn and Kelly,” the release noted, “the audit committee is not planning to treat individuals benefiting from improper handling of compensation from share appreciation rights as responsible for misconduct.” Only Ghosn and Kelly were accused of wrongdoing. Eight other executives who had received bonuses in violation of company rules were not mentioned. Only Ghosn was given no chance to repay any compensation that might have violated company rules (Kelly received no extra compensation), while the audit committee and board delivered a one-­sided report that failed to even mention that two corporate officers, Nada and Onuma, had cooperated with the prosecutors’ office, thus had admitted to committing crimes.
  • On September 12, Passi was removed from his involvement in the investigation by way of a letter from Saikawa, one of Saikawa’s final acts as CEO. Passi was replaced by Nada loyalist Kathryn Carlile. The coverup was complete.
  • On September 13, Carlile, whose bio cannot be found on Nissan’s website, summoned Passi to her office where he was instructed to turn over “all work” related to his investigation into executive compensation.
  • On September 15, Greg Kelly’s and Nissan’s trials got underway separately in Tokyo District Court. Kelly is accused of helping Ghosn falsify annual securities reports for an eight-­year period from fiscal years 2010 through fiscal year 2017. Kelly can’t read, write or speak Japanese and all securities reports are prepared in Japanese. Unlike Kelly, who has denied wrongdoing, Nissan admitted to guilt as a corporate entity in December 2018. Nissan CEO Makoto Uchida testified in the Nissan case on July 7, 2021, and declared that Ghosn held too much power. He reportedly said there was a culture of fear among Nissan’s management ranks. However,  he didn’t explicitly say Ghosn was guilty, according to media reports.
  • On September 16 Saikawa resigned.
  • On September 23, 2019, the US Securities and Exchange Commission completed its 10­month investigation and assessed fines of $15 million to Nissan, $1 million to Ghosn and $100,000 to Greg Kelly for allegedly violating the anti­-fraud provisions of the Securities Exchange Act of 1934. All three parties agreed to pay the fines with “no admission, no denial” stipulations. Nissan had already pled guilty to a similar charge in a criminal case in Japan. In the case of Ghosn and Kelly, the SEC agreed that their “non­-denial” agreement would carry no insinuation of guilt in their criminal cases in Japan. Ghosn and Kelly have said they chose not to challenge the SEC’s findings because it would have been expensive – as much as five times more costly than what they paid in fines – and might have exposed their legal strategy in the criminal cases in Japan. The settlement came two months before Ghosn’s escape.
  • Anyone following the case who then read through the SEC findings could see that the agency had failed to mention important matters including: Christina Murray’s report, which Latham & Watkins helped draft; the fact that two of its three main witnesses identified only as Nissan Employee 1 and Nissan Employee 2 (Toshiaki Onuma and Hari Nada) had entered into plea agreements in Japan, thus admitted to committing crimes related to the case against Ghosn and Kelly; the fact that as many as four representative directors worked on Ghosn’s retirement package during the eight years under review, including two Japanese (Toshiyuki Shiga and Hiroto Saikawa), both of whom outranked Kelly; and the criminal complaint made against Nissan for moving documents out of the country from Nissan North America headquarters in Tennessee.
  • On October 8, Thierry Bolloré, who had been excluded from receiving Passi’s advisory one month earlier because he was from Renault, delivered a scathing rebuke of the audit committee’s cover-up and submitted a list of more than 50 questions on subjects ranging from Nada’s, Onuma’s and Latham’s & Watkins’s conflicts of interest to Christina Murray’s sudden departure and the choice of Kathryn Carlile, a Nada “close associate,” as her replacement to head the Ghosn investigation. Bolloré asked for answers by October 21.
  • On October 9, Nissan announced that Nada had been cleared of any wrongdoing in the automaker’s internal investigation (he had not) and had been promoted to senior vice-president and senior adviser overseeing special projects; also that he would continue reporting to the CEO. The announcement further stated that Kawaguchi, one of the coup members with Nada, would take over legal department duties from Nada, but that Nada would continue to “focus on important tasks such as forthcoming legal actions” in the Carlos Ghosn case. Kawaguchi is not a lawyer, and Nada broke the law.
Hari Nada. Photo: Nissan
  • On October 10, Renault’s board of directors removed Bolloré as CEO, reportedly reacting to his tough critique of Nissan and its apparent cover-up. Bolloré was replaced by an interim CEO. Media reports indicated that Renault wanted to “turn a new page” in its relations with Nissan.
  • On October 17, Ghosn’s Tokyo legal team filed a 59­-page brief in Tokyo District Court alleging prosecutorial misconduct by the Tokyo prosecutor’s office. They asked for a dismissal of the charges, which wasn’t likely to happen, but more importantly laid out details of the raids on his residences and collusion between Nissan and METI – that is, the Japanese government. They also charged the prosecutors office with racial discrimination since only two foreigners were arrested, both white, and no Japanese.
  • On November 1, less than one month after being named head of Nissan’s legal department, Kawaguchi retired. He would eventually be replaced by Yasunori Manno, who is also not a lawyer. Imazu, another of the coup members, had retired in June.
  • On December 29, Ghosn escaped from Japan, arriving in Beirut, Lebanon, on December 30, 2019.

2020

  • On February 12, 2020, Nissan filed a civil lawsuit against Carlos Ghosn in the Yokohama District Court seeking 10 billion yen ($91 million) in damages to recover monetary losses allegedly caused by Ghosn’s misconduct. (A source closely following the lawsuit dismissed it as largely symbolic since Ghosn is not in Japan, nor does he have property or other assets there that could be seized.)
  • On February 28, 2020, Japan’s Financial Services Agency imposed a 2.4 billion yen ($22 million) fine on Nissan for underreporting Ghosn’s and other executives’ compensation in Nissan’s annual securities reports for fiscal years 2011 through 2017, in violation of financial disclosure obligations. The agency based its fine on a December 10, 2019, recommendation by the Japanese Securities and Exchange Surveillance Commission.
  • On May 28, 2020, officers of a Yokohama court, acting on a request by Nissan CEO Makoto Uchida, raided Passi’s home, frightening his family, to take Passi’s company laptop and phone.

2021

  • During Nada’s January 2021 testimony the prosecutors in the Kelly trial disclosed that he had entered into a plea agreement. The Criminal Affairs Division of the Ministry of Justice declined to provide any details of the crime or crimes Nada committed.
  • On May 27, 2021, some 90 foreign institutional investors filed a claim against Nissan in Tokyo District Court for 34.4 billion yen ($314 million) in financial damages resulting from fallen share prices following Ghosn’s arrest and imprisonment. Lawyers for the investor group argued that the cause of the damages extended beyond the misdeeds of company executives and involved inadequate internal controls over a period of years. Kyodo News reported that the group argued that Nissan should have anticipated a drop in share prices due to “damaged trust” in its governance and accounting systems.

Roger Schreffler is a veteran correspondent for Ward’s Automotive and a former president of the Foreign Correspondents’ Club of Japan.