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

2. Japanese Law Precludes Derivative Claims Against
Anyone But Honda Japan's Personnel And Therefore
Precludes Derivative Claims Against American Honda
Personnel.
In authorizing shareholder derivative suits, the Japanese Diet expressly
limited the class of permissible defendants to those identified by statute. (I ER
54:122 (Kitazawa Decl.); I ER 55:773A, 18 (Koma Decl.); I ER 52:130
(Henderson Decl.).) The Japanese Commercial Code allows derivative actions
against only the directors, auditors, liquidators and promoters of the corporation
in which the shareholders own shares and two carefully defined categories of
third parties not relevant to this case. (I ER 54:!23
(Kitazawa Decl.); I ER
52:129 (Henderson Decl.).) There is no other statutory provision allowing a
derivative action against any other class of defendants; and there is no instance
in Japanese jurisprudence in which a shareholder has been permitted to maintain
a derivative action against anyone outside this exclusive list.
Japanese law, therefore, does not permit any shareholder (let alone
plaintiff, as a holder of ADRs) to assert claims against any current or former
American Honda officer or director or against any third party.