Ghosn's legal woes highlight governance failings in Japan

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FILE - In this April 20, 2018, file photo, then Nissan Chairman Carlos Ghosn speaks during an interview in Hong Kong. One of the biggest mysteries surrounding the arrest of Nissan’s former chairman Carlos Ghosn is over how he allegedly could have underreported his income by millions of dollars for years and why the company is going after the suspected wrongdoing now. (AP Photo/Kin Cheung, File)

One of the biggest mysteries surrounding the arrest of Nissan's former chairman Carlos Ghosn is over how he allegedly could have underreported his income by millions of dollars for years and why the company is going after the suspected wrongdoing now.

Ghosn, who headed the Renault-Nissan-Mitsubishi Motors auto alliance, was arrested Nov. 19 on suspicion he underreported his income by $44 million over five years, or about half of what he was really making. Nissan Motor Co. and Mitsubishi have ousted him as chairman; the board of Renault SA of France says it's waiting for more evidence.

Nissan is among a growing list of top-name Japanese companies whose corporate governance has been found lacking in recent years.

"Wait a minute. Who wrote the financial statements? The accountants. Who audited them? The auditors," Christopher Richter, auto analyst for CLSA Securities Japan Co., said of the case. "How do you do this without other people being complicit?"

Japanese prosecutors say Ghosn and another Nissan executive, Greg Kelly, an American suspected of collaborating with him, were arrested because they are considered flight risks. But the timing of the scandal, given the length and scale of the alleged wrongdoing, is raising questions.

Why did Nissan choose to come forward now, asks Eric Schiffer, chief executive of Reputation Management Consultants in the Los Angeles, California, area.

"If Nissan knew about this all along and decided to pull the trigger, such Machiavellian tactics will significantly backfire on the brand," Schiffer said.

Japanese media have reported that two other company employees contacted authorities as whistleblowers and sought plea deals. Ghosn has not made any public statements about the case.

Kelly's American lawyer Aubrey Harwell said his client, who was dismissed as a Nissan executive director after his arrest, did nothing wrong.

Kelly acted "according to the law and according to company policy," Harwell said. "He had talked to people in the company and to outsiders, and he believed everything he did was done totally legally," he said in a telephone interview from his office in Nashville, Tennessee.

Only Ghosn's attorneys and embassy officials from Lebanon, France and Brazil, where he has citizenship, are allowed to visit him. On Monday, Imad Ajami, a Lebanese consultant in Tokyo who has spoken with people allowed to visit Ghosn, said he also was asserting his innocence.

Ajami said Ghosn's visitors have bought him a mattress, clothing, cheese and other foods to make his stay under the frugal conditions in the detention center more comfortable. Detainees usually sleep on straw tatami mats and are fed mostly rice, soup and vegetables.

Prosecutors have released very little information about the case and neither man has been officially charged. In Japan suspects can be held for weeks for questioning without any charges.

A source familiar with an internal investigation by Nissan said the hidden salary was categorized as "deferred income," meaning it was promised for later on, such as after Ghosn's retirement, and the documents promising the money were kept secret from auditors and others. He spoke on condition of anonymity as he was not authorized to discuss such details.

One possible motive is that Ghosn was seeking to avoid public criticism over his multi-million dollar paychecks, which are a rarity in Japan even for top executives. Even the underreported amounts, about 1 billion yen ($9 million) each year, drew unwelcome scrutiny and commentary.

Ghosn was forced to defend his salary at shareholders' meetings beginning in 2010, when Japan started requiring the disclosure of individual executive pay.

Pay packages in the west tend to be higher — Toyota Motor Corp.'s Chief Executive Akio Toyoda earns less than 400 million yen ($3.5 million) a year. But many Japanese companies lack the sorts of systematic checks required for publicly listed U.S. companies. That includes periodically changing who checks financial statements instead of having the same people do it for many years.

Japan needs independent oversight for executive pay, said corporate governance expert Takuji Saito, who teaches at Keio Business School.

"The problem here was that the pay was significant, in line with global standards, but the way it was decided was still so Japanese," he said of Nissan's lack of transparency. "Nissan deserves criticism for having allowed this to continue unchecked for so long."

Saito believes that failing to report deferred income is still "a gray area in criminality" in Japan, but a clear problem in corporate governance.

It's certainly turned out to be a big problem for Ghosn, 64. He is being held at a Tokyo detention center pending his indictment or release and has hired Paul, Weiss, Rifkind, Wharton & Garrison LLP to represent him.

Japanese media say, without citing sources, that Ghosn is asserting his innocence, insisting he always wanted his income reports to be legal and denying he signed secret documents. Prosecutors have refused to comment.

Whether a suspect intended to commit a crime or did it unknowingly is important in determining criminality under Japanese law.

Nissan veteran Hiroto Saikawa, who took over from Ghosn as the automaker's chief executive last year, has harshly criticized his former boss and vowed to instill greater transparency and accountability at Nissan. The company is setting up a panel of outsiders to come up with recommendations, including reviewing the company's executive compensation system.

The raft of scandals at many blue chip Japanese companies suggests managers are struggling to meet sometimes overly ambitious profit targets amid slowing demand, labor shortages, rising costs and intensifying competition. But they also highlight a rift between old-guard practices and an increasingly global business world in Japan.

— Major steelmaker Kobe Steel was charged with violating competition laws after massive faking over many years of quality data for products sent to hundreds of companies, including aluminum castings and copper tubes for autos, aircraft, nuclear power plants, appliances and trains. Kobe Steel said a zealous pursuit of profit, unrealistic targets and an insular corporate culture caused the wrongdoing.

— In 2016, Mitsubishi Motors Corp. disclosed it falsified mileage data. That followed a massive cover-up over decades of auto defects thought to have helped cause a fatal accident. In 2004 its president, Katsuhiko Kawasoe, was arrested. He was sentenced to three years in prison, suspended for five years, and did not serve time in jail.

— In 2015, electronics maker Toshiba Corp. said it had doctored its books in a systematic accounting cover-up that began in 2008 or earlier. The company declared bankruptcy, stricken by troubles in its nuclear business after multiple meltdowns in March 2011 at a power plant in Fukushima, northeastern Japan.

— Beginning in 2014, auto parts supplier Takata Corp. recalled more than 100 million defective air-bag inflators linked to 25 deaths and more than 180 injuries worldwide. Last year, Takata pleaded guilty to fraud in a U.S. court and agreed to pay more than $1 billion (109 billion yen) in penalties.

These scandals and more, from faked data to cutting corners, have driven calls for stricter corporate oversight. Reflecting widespread sentiments, Schiffer, the brand management expert, says he finds it hard to believe Nissan insiders weren't aware of what was going on earlier.

Otherwise, they were "incompetent," he said.

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Yuri Kageyama is on Twitter at https://twitter.com/yurikageyama

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