On July 29, 2021, both the SEC and the U.S. Attorney for the Southern District of New York announced charges against Trevor Milton, the founder, former CEO and former executive chairman of Nikola Corporation, a company engaged in the development of electric trucks. The complaint and indictment allege a series of misleading and inaccurate public statements by Milton on social media and elsewhere leading up to and after the company’s merger with a special purpose acquisition company (SPAC) through which Nikola became a public company, which included related private placements (PIPEs).
The alleged facts paint a picture of an executive unfettered by the truth and concerned primarily with sustaining stock market enthusiasm, and in particular retail investor enthusiasm, for Nikola’s stock by delivering positive news. According to the complaint and indictment, through private social media posts, podcasts and interviews, in addition to official Nikola press releases and Twitter posts that he controlled, Milton made statements that inaccurately portrayed the company’s prototype truck as being fully functioning; inaccurately characterized the company’s hydrogen production capabilities; inaccurately characterized the company’s access to electricity needed to produce hydrogen; inaccurately described the development of a pickup truck that did not yet exist; and inaccurately described “billions and billions and billions and billions of dollars in orders” for the company’s trucks. The alleged misstatements are described in detail in the complaint (available here) and the indictment (available here).
The falsity of many of these statements came to light in September 2020, when a financial research firm with a short position in the stock published a report alleging, among other things, that the prototype truck demonstration had been staged. Ten days later, Milton resigned his position at Nikola.
On one level, the allegations are a simple case of enforcing anti-fraud rules under a fairly extreme set of facts, where a corporate executive was driving up his company’s stock price by knowingly making demonstrably false statements out of concern for market reaction. But there may also be lessons for executives at any public company.
Caution Should be Used in All Public Statements
The actions against Milton are a reminder that public statements by corporate officers in relatively informal settings, outside of SEC filings, can be used as a basis for Rule 10b-5 sanctions. A company’s lawyers may scrutinize annual and quarterly reports to ensure that they contain appropriate cautionary statements. In contrast, private tweets, other social media postings and statements in podcasts or interviews are often made without compliance in mind. In Milton’s case, he encouraged investors to follow him on Twitter to get “accurate information” about Nikola “faster than anywhere else.” In practice, he used Twitter to announce corporate initiatives that he had not vetted internally, to answer investor questions with misleading or outright false information, and even to double down on prior false statements.
Moreover, according to the allegations, Milton responded to other senior executives’ expressions of concern about his social media presence and his public statements by asserting that these other executives “did not understand current capital market dynamics or what he was trying to accomplish with retail investors, and that he needed to be on social media to put out good news about Nikola to support its stock price.” Retail investor frenzy driven by social media and retail-oriented trading platforms such as Robinhood does not give companies a pass from the application of the securities laws. The SEC has emphasized that it will monitor these situations for manipulation or other misconduct.
Effective Governance and Controls Remain a Responsibility of Public Companies
The actions against Milton offer a number of lessons for companies:
If you have any questions about this or related topics, your regular Locke Lord contact or any of the authors can discuss these matters with you.
 In its Section 21(a) report concerning Netflix, Inc. and its CEO, Reed Hastings, available here, the SEC has given guidance on the use of social media channels to deliver information to investors under Regulation FD. While Milton was not charged with Regulation FD violations, this guidance should be considered in addition to the anti-fraud rules.
The post Charges Against Nikola Founder Provide Reminder to Use Caution in All Public Statements and Offer Governance Lessons appeared first on Capital Markets.
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