Sun | May 31, 2020

Nissan and Ghosn to settle SEC fraud charges

Published:Tuesday | September 24, 2019 | 12:21 AM
Former Nissan Chairman Carlos Ghosn.
Former Nissan Chairman Carlos Ghosn.

Nissan has agreed to pay US$15 million and its former chairman, Carlos Ghosn, is paying US$1 million to settle federal regulators’ civil fraud charges of hiding from investors more than US$140 million in compensation and retirement benefits for Ghosn.

The US Securities and Exchange Commission, SEC, announced the settlement Monday with the major Japanese automaker and its former chairman, who also agreed to be barred for 10 years from serving as an officer or director of a public company. Ghosn is awaiting trial in Japan on financial misconduct allegations in a criminal case.

Ghosn, who led Nissan for two decades, was arrested by Japanese authorities in Tokyo and jailed four times since November. Ghosn has maintained he is innocent. He is currently out on bail but faces restrictions on his activities such as not being allowed to contact his wife, Carole Ghosn. She has appeared before a Japanese judge to answer questions in the case. The first hearing in the trial has been set for April.

Ghosn and Nissan Motor Co settled the charges without admitting or denying the SEC’s allegations, but agreed to refrain from future anti-fraud violations of the securities laws.

In addition, a former Nissan director, Greg Kelly, agreed to pay a US$100,000 penalty to settle the SEC charges, to be barred for five years from serving as an officer or director of a public company, and to be suspended for five years from practising as an attorney before the SEC.

In a statement, Ghosn’s team of lawyers noted that he will be allowed to contest and deny the allegations in the criminal case in Japan, and they said he “fully intends to do so”.

“Mr Ghosn and his defence team are now able to focus their efforts on continuing to vigorously fight the criminal case in Japan and pursue his claims against Nissan around the world,” the statement said. “They remain confident that, if given a fair trial, he will be acquitted of all charges and fully vindicated.”

Attorneys representing Nissan declined to comment on the SEC settlement. An attorney for Kelly wasn’t immediately available for comment.

Elaborate scheme

Starting in 2009, Ghosn, with the help of Kelly and subordinates at Nissan, conducted a scheme to conceal more than US$90 million of his compensation from investors and public disclosure, while also acting to increase his retirement benefits by over US$50 million, the SEC alleged. Each year, Ghosn fixed a total amount of compensation for himself, with a certain amount paid and disclosed, and an additional amount unpaid and undisclosed, according to the agency.

The regulators said that Ghosn and his subordinates concocted various ways of structuring payment of the undisclosed compensation after his retirement, including entering into secret contracts, backdating letters to grant him interests in Nissan’s long-term incentive plan, and changing the way his pension was calculated to generate over US$50 million in additional benefits.

“Simply put, Nissan’s disclosures about Ghosn’s compensation were false,” Steven Peikin, co-director of the SEC’s enforcement division, said in a statement. “Through these disclosures, Nissan advanced Ghosn and Kelly’s deceptions and misled investors, including US investors.”