Listening to Nada tell his story to the presiding judge are Kelly and his legal team. Kelly, 64, was a Tennessee executive who rose through Nissan as Ghosn worked around the world to spur growth and prosperity for the automaker. The gist of the case is whether Ghosn, with Kelly’s help, conspired to keep millions of dollars in deferred compensation out of financial filings for fear that the public would disapprove.
Ghosn, too, would now be sitting in the courtroom with Kelly, but the former chairman jumped bail and fled Japan in December 2019 to avoid the trial.
Kelly’s defense has presented documents to show that the automaker was game-planning to remove Ghosn as early as May 2018. One email contained several flow charts done at Nada’s behest with different scenarios: One played out what would happen if Ghosn were dismissed by Renault; another imagined that Ghosn himself might want to resign; another imagined that Nissan ditched Ghosn.
In one of the charts, Nissan planned for an “actual conviction case” scenario, in which Ghosn would be arrested and convicted. The scenarios also imagined how it would play out if the chairman would be mentally incapacitated or bankrupt.
In court, Nada testified that in mid-2018, his strategy was to collect evidence against Ghosn, confront Ghosn at a board meeting and compel Ghosn to resign. If Ghosn refused to step down, the company then planned to turn over its findings to prosecutors, Nada testified.
But that plan became complicated.
When Nissan’s statutory auditor first approached prosecutors, Nada says he was spooked into cutting a plea bargain to testify against Ghosn.
“I recognized prosecutors at least knew Nissan was involved,” Nada said. “I was concerned my own involvement would be misunderstood. … I was involved in carrying out many of the things Mr. Ghosn was under investigation for. My involvement could be mischaracterized.”
A full picture of Nada is a complex composite of an executive saddled with potential conflicts of interest, stemming partly from his role as a plea bargainer. To Nada’s critics, including those inside the company, this undermined the very legitimacy of Nissan’s investigation of Ghosn.
Critics point out that Nada coordinated Nissan’s investigation for months after Ghosn’s arrest. He also commissioned Nissan’s outside counsel, Latham & Watkins, to help lead it. This posed potential conflicts because Nada had consulted the law firm on many of the very Ghosn compensation schemes that were now being probed by prosecutors.
Critics of Nissan’s investigation into Ghosn’s activity say that, among other problems is the fact that it didn’t include interviews with Ghosn or Kelly to hear their response to the full set of allegations.
Chief among the critics was Thierry Bollore, former Renault CEO, who spelled out his concerns in an Oct. 8, 2019, letter to Nissan’s board.
“How is it possible that Mr. Nada continues to hold a senior corporate officer position within Nissan?” Bollore asked in the letter, the contents of which were confirmed to Automotive News by a person who received it. “The credibility of the internal investigation as well as Nissan’s governance are potentially compromised by this.”
Bollore highlighted the sidelining of Ravinder Passi, Nissan’s then- global general counsel. Passi, too, had raised questions about the propriety of Nada’s role and other issues surrounding Nissan’s internal investigation in a September 2019 letter to independent directors.
“I believe that these matters create substantive concerns and that these issues will come to a head in due course and create exposure and risk for the company,” Passi wrote in the letter, which was published by Bloomberg News.
Three days after submitting the letter, Passi was sidelined from the probe. He was later abruptly told he would be transferred to Nissan’s U.K. operations — an effective demotion. Before leaving Japan for the U.K. in June 2020, his home was raided by people with court orders to seize his company computer and smartphone.
“After I had blown the whistle, I was subjected to significant acts of retaliation by Nissan,” Passi said in a statement to Automotive News. “These included me having a significant part of my role removed from me; being suspended without pay as a ‘disciplinary’ sanction.”
After Passi returned to Britain, he filed a complaint against the Nissan with the U.K. Employment Tribunal, claiming he is the victim of retaliation for his whistleblowing. He says he was subsequently terminated on Nov. 11 and then filed another complaint addressing further acts of retaliation to which he says he was subjected after filing the first claim.