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Cydney Posner at Cooley had a post yesterday that reminds us of other EV companies that faced SEC enforcement recently:

“Then we had a twofer [after the Nikola enforcement] – settled actions against two manufacturers of electric vehicles for misleading investors. In the first case, Hyzon Motors Inc., a maker of hydrogen fuel cell electric vehicles, was charged with misleading investors about the status of Hyzon’s products, business relationships and vehicle sales, agreeing to pay a civil penalty of $25 million. Then, the predecessor to Spruce Power Holding Corporation, XL Fleet, which provided fleet hybrid electrical vehicles, was alleged to have misled investors about its sales pipeline and revenue projections.  As the successor, Spruce agreed to pay a civil penalty of $11 million. (See this PubCo post.)” 

Fraud and misrepresentation happen in other industries, but could the pressure of being a start up in a white hot, speculative and new industry (EVs) push company management too far? And if that is the case, what is the likelihood similar behavior exists in other climate tech, energy transition and decarbonization startups? At least one direct air capture company was rather close to being accused of such in the past, and 2023 saw a spate of fraud and misrepresentation accusations levied against carbon offset project sponsors and developers.

Fraud and misrepresentation aren’t the only cause for concern – basic business projections and zeal can be problematic too. Investors and business partners in climate/decarbonization startups should take extra care in understanding market realities, technical product performance claims at scale and governance before handing over any funds or setting expectations about the success of their products/services.

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The Editor

Lawrence Heim has been practicing in the field of ESG management for almost 40 years. He began his career as a legal assistant in the Environmental Practice of Vinson & Elkins working for a partner who is nationally recognized and an adjunct professor of environmental law at the University of Texas Law School. He moved into technical environmental consulting with ENSR Consulting & Engineering at the height of environmental regulatory development, working across a range of disciplines. He was one… View Profile