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

In his effort to keep a Japan-centered lawsuit in the United States,
plaintiff posits a "false conflict" in which there is no difference between foreign
and domestic law (see Gianaculas v. Trans World Airlines, Znc. , 761 F.2d
1391, 1393 (9th Cir, 1985)), presumably in hopes of persuading this Court that
it doesn't matter whose law applies. (AOB 11-14.)
But it does matter. To show why, we first demonstrate that, contrary to
Plaintiff's argument, Japanese law does not permit an ADR holder to sue
derivatively. We then demonstrate why that law governs this case and requires
dismissal.
These purely legal questions are reviewed de novo. Fed. R. Civ. P.
44.1, Salve Regine College v. Russell, 499 U.S. 225, 231-233, 111 S.Ct. 1217,
1221-1222, 113 L.Ed.2d 190.
A. Japanese Law Does Not Empower ADR Holders To Bring A
Derivative Action.
Article 267 of the Japanese Commercial Code, which establishes
the derivative remedy, states:
1. Any shareholder who has held a share
continuously at least for the last six months may
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