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In August we wrote about the new charges being brought against former Nikola CEO Trevor Milton. On October 14, Milton was found guilty of one count of securities fraud and two counts of wire fraud, while he was acquitted on a second count of securities fraud stemming from numerous statements he made in multiple venues concerning the sustainability attributes and development status of Nikola’s electric truck and associated technologies. It took the jury under six hours to deliver the verdict and Milton faces up to 20 years in prison at his sentencing in January.

The witnesses for the prosecution included many from within Nikola itself. A former Nikola designer told the jury that Nikola’s prototype for its “Badger” electric truck was made from a Ford F150.  The electric semi truck unveiled by Nikola had neither a natural-gas turbine nor fuel cell as Milton had promised investors. Nikola’s CFO testified that Milton was obsessive about the company’s stock price.

Our view: The circumstances of this case are perhaps more dramatic than most. However, at the center of this case is something every company should consider – the CEO was found criminally liable for false and misleading statements about the product’s sustainability attributes made outside of his company’s 10-K, including those on social media.

This illustrates the importance of consistency and validity of ESG messaging regardless of where/how such statements are made. While we may not soon see again criminal charges as flagrant as these, civil penalties and investigations are within the realm of possibility. Whether it’s the SEC’s Climate Taskforce or NGOs looking for strategic targets, plaintiffs and regulators are looking for inconsistencies in company messaging, especially when it comes to ESG. Companies should have strong governance mechanisms in place to ensure that ESG communications are consistent and valid, especially for companies that rely extensively on marketing departments for these topics.

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The Editor

Zachary Barlow is a licensed attorney. He earned his JD from the University of Mississippi and has a bachelor’s in Public Policy Leadership. He practiced law at a mid-size firm and handled a wide variety of cases. During this time he assisted in overseeing compliance of a public entity and litigated contract disputes, gaining experience both in and outside of the courtroom. Zachary currently assists the editorial team by providing research and creating content on a spectrum of ESG… View Profile