Batchelder v. Kawamoto Appellees' Brief - Greines, Martin, Stein ...

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substantive law. Messrs. Yanagida and Akai (like Professor Green, retreads from that earlier Milberg, Weiss case) confirm that a Japanese court will not enforce a judgment against Japanese directors in a shareholder derivative suit brought outside Japan. (I11 ER 77:16) Messrs. Hirakawa (I1 ER 71) and Sakata (I1 ER 72) confirm that the prevailing view is that only a registered shareholder can bring a derivative action under Japanese law. (I1 ER 71:p. 5; I1 ER 72: 14.) Koji Takeuchi (111 ER 74), who discusses only Japanese procedure, shows that Japan is an adequate, alternative forum for purposes of forum non conveniens. In short, as more fully discussed below, plaintiff's expert witnesses either (a) agree with defendants' experts; (b) fail to controvert their opinions; or (c) express unhappiness with current Japanese law - that is, they admit this is the way things are, but they want to see things change.
LEGAL DISCUSSION I. WHO CAN SUE? UNDER JAPANESE LAW, WHICH GOVERNS THIS CASE, ONLY SHAREHOLDERS - NOT PERSONS WHO, LIKE PLAINTIFF, HOLD ONLY ADRs - CAN BRING A DERIVATIVE SUIT. Plaintiffs action stumbles at the very outset because he holds ADRs rather than shares of Honda Japan. The court below, applying Japanese law, held that plaintiff, as the holder of ADRs, "is not a shareholder and lacks standing to bring a derivative action" on behalf of Honda Japan. (111 ER 90:p. 3.) In the United States, the shareholder derivative action is a suit in equity, a creature of judge-made law. Bmso v. Running Springs County Club, Inc., 228 Cal.App.3d 92, 104-05, 278 Cal.Rptr. 758, 764 (1991). In Japan, it exists only as it is embodied in a statutory enactment. Japanese law confers only "specific rights and powers. Potential rights which are not granted in the Code are not conferred" and cannot be created by the judiciary. (I ER 52:Ill Henderson Decl.)
Page 1 and 2: IN THE UNITED STATES COURT OF APPEA
Page 3 and 4: CORPORATE DISCLOSURE STATEMENT (FED
Page 5 and 6: 3. The Presence Of A Meritless Fede
Page 7 and 8: Page TABLE OF AUTHORITIES CASES Ala
Page 9 and 10: Fitzgerald v. Westland Marine Corp.
Page 11 and 12: Page Mizokami Bros. of Ariz. v. Mob
Page 13 and 14: Sussman v. Bank of Israel, 801 F. S
Page 15 and 16: STATEMENT OF JURISDICTION Appellees
Page 17 and 18: 98.2% of Honda Japan's shareholders
Page 19 and 20: law; (3) therefore, plaintiff may n
Page 21 and 22: argument misses the point: Japanese
Page 23 and 24: management of Honda Japan's busines
Page 25 and 26: corporate law scholar, has been hea
Page 27: 2. Plaintips Expert Witnesses Only
Page 31 and 32: demand, in writing, that the stock
Page 33 and 34: Nonetheless, plaintiff insists that
Page 35 and 36: there is a compelling reason not to
Page 37 and 38: other than shareholders of record);
Page 39 and 40: Ninth Circuit precedent relied on i
Page 41 and 42: None of plaintiff's declarants disp
Page 43 and 44: B. The Court Should Apply Japanese
Page 45 and 46: ignored the Delaware court's learne
Page 47 and 48: 111. WERE CAN PLAINTIFF SUE? EVEN I
Page 49 and 50: heard by the proper court. (I ER 55
Page 51 and 52: exercise of statutory rights substa
Page 53 and 54: Section 2116 allows shareholders, c
Page 55 and 56: e contrary or prejudicial to the in
Page 57 and 58: against entertaining a derivative s
Page 59 and 60: plaintiff's initial choice of an Am
Page 61 and 62: Japanese directors of Honda Japan.
Page 63 and 64: the Japanese forum, because a U.S.
Page 65 and 66: determines the action was brought i
Page 67 and 68: In strikingly similar circumstances
Page 69 and 70: Finally, - as plaintiffs' own exper
Page 71 and 72: U.S., law; and the claims do not ar
Page 73 and 74: foreign forum. Blanco v. Banco In&.
Page 75 and 76: private issuer* and is therefore ex
Page 77 and 78: contravenes the plain language and
Page 79 and 80:
14a-9. The court distinguished Wils
Page 81 and 82:
CONCLUSION This case has nothing to
Page 83 and 84:
STATEMENT OF RELATED CASES (NINTH C
Page 85 and 86:
PROOF OF SERVICE MAILING LIST Offic
Page 87:
Dennis M. Perluss MORRISON & FOERST
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Batchelder v. Kawamoto Appellees' Brief - Greines, Martin, Stein ...

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