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Former Nikola CEO Trevor Milton Charged In Securities Fraud Scheme

July 30, 2021

Former Executive Chairman and CEO of Nikola Corporation is Alleged to Have Made False and Misleading Statements to Retail Investors to Drive Investor Demand in Nikola Stock

Audrey Strauss, the United States Attorney for the Southern District of New York, and Phillip R. Bartlett, Inspector-in-Charge of the New York Division of the United States Postal Inspection Service (“USPIS”), announced today the unsealing of a criminal indictment charging TREVOR MILTON with securities and wire fraud in connection with his scheme to defraud and mislead investors about the development of products and technology by the company he founded, Nikola Corporation (“Nikola”).

Manhattan U.S. Attorney Audrey Strauss said: “As alleged, Trevor Milton brazenly and repeatedly used social media, and appearances and interviews on television, podcasts, and in print, to make false and misleading claims about the status of Nikola’s trucks and technology. But today’s criminal charges against Milton are where the rubber meets the road, and he now will be held accountable for his allegedly false and misleading statements to investors.”

Inspector-in-Charge Phillip R. Bartlett said: “This defendant allegedly concealed the progress and success of Nikola’s technology, when he lied to investors and lured them into believing that they had invested at the ground floor of a company that had already developed viable Nikola One and Badger prototypes that were ready to be produced. The one thing fraudsters have in common – they’re liars, cheaters and thieves.”

MILTON surrendered this morning and will be presented later today before United States Magistrate Judge Sarah Netburn. The case is assigned to U.S. District Judge Edgardo Ramos.
 

According to the allegations in the Indictment unsealed today in Manhattan federal court:[1]

Overview

From at least in or about November 2019 up through and including at least in or about September 2020, TREVOR MILTON engaged in a scheme to defraud investors by inducing them to purchase shares of Nikola Corporation (“Nikola”), the electric- and hydrogen-powered vehicle and energy company that MILTON founded, through false and misleading statements regarding Nikola’s product and technology development.  MILTON’s scheme targeted individual, non-professional investors – so-called “retail investors” – by making false and misleading statements directly to the investing public through social media and television, print, and podcast interviews.

MILTON made these false and misleading statements regarding Nikola’s products and capabilities to induce retail investors to purchase Nikola stock.  Among the retail investors who ultimately invested in Nikola were investors who had no prior experience in the stock market and had begun trading during the COVID-19 pandemic to replace or supplement lost income or to occupy their time while in lockdown, and some of the retail investors that MILTON’s fraudulent scheme targeted suffered tens and even hundreds of thousands of dollars in losses, including, in certain cases, the loss of their retirement savings or funds that they had borrowed to invest in Nikola.  Moreover, MILTON took advantage of the fact that Nikola went public by merging with a Special Purpose Acquisition Company or “SPAC,” rather than through a traditional IPO, by making many of his false and misleading claims during a period where he would have not been allowed to make public statements under rules that govern IPOs.

MILTON made false claims regarding nearly all aspects of Nikola’s business, including: (a) false and misleading statements that the company had early success in creating a “fully functioning” semi-truck prototype known as the “Nikola One,” when MILTON knew the prototype was inoperable; (b) false and misleading statements that Nikola had engineered and built an electric- and hydrogen-powered pickup truck known as “the Badger” from the “ground up” using Nikola’s parts and technology, when MILTON knew that was not true; (c) false and misleading statements that Nikola was producing hydrogen and was doing so at a reduced cost, when MILTON knew that in fact no hydrogen was being produced at all by Nikola, at any cost; (d) false and misleading statements that Nikola had developed batteries and other important components in-house, when MILTON knew that Nikola was acquiring those parts from third parties; and (e) false and misleading claims that reservations made for the future delivery of Nikola’s semi-trucks were binding orders representing billions in revenue, when the vast majority of those orders could be cancelled at any time or were for a truck Nikola had no intent to produce in the near-term.

Nikola One

Throughout in or about 2020, MILTON promoted a false and exaggerated narrative that Nikola was a first mover in the zero-emissions-trucking business.  Specifically, MILTON emphasized that Nikola had defied expectations as a young, disruptive company when it managed to build its prototype Nikola One, which Nikola unveiled on or about December 1, 2016, at a large event that was filmed and broadcast on the internet.  During that event and later, MILTON claimed that the prototype Nikola One was a fully functioning truck, and emphasized that early purported success as a defining event for Nikola.  For example, at the unveiling event for the Nikola One, MILTON claimed the Nikola One “fully functions and works, which is really incredible.”

In fact, the Nikola One prototype was not completed, let alone tested and validated, by the time of the unveiling event.  Rather, the prototype was wholly missing significant parts, including gears and motors, and the control system (i.e., the system that communicates the driver’s directions to the vehicle) was incomplete.  The infotainment system in the cab was also incomplete.  Instead, for the purpose of the unveiling event, tablet computers or other computer screens were mounted into the areas where the screens for the infotainment would be, and the screens were set to display images created to have the appearance of infotainment screens, with speedometers, maps, and other information displayed.

Later, in or about January 2018, and despite the fact that the Nikola One prototype was never completed or operational, MILTON had Nikola publish on Twitter and also published on his own Twitter account a video in which the Nikola One appeared to be driving on its own power down a road with no incline.  In fact, to film these clips, the Nikola One was towed to the top of hill, at which point the “driver” released the brakes, and the truck rolled down the hill until being brought to a stop in front of the stop sign.

The Badger

From in or about February 2020 up through and including at least in or about September 2020, MILTON promoted a new electric pickup truck called the Badger through false and misleading claims about the Badger’s engineering and development.  In particular, MILTON repeatedly and falsely stated that Nikola engineered and built the Badger from the “ground up” as a “clean sheet” vehicle using Nikola’s in-house components and intellectual property, that the company had been working on the program for years and had tapped into billions of dollars in Nikola engineering, that the building of prototype vehicles was complete and they were “real” trucks and “fully functioning vehicle inside and outside,” and that an original equipment manufacturer partner (the “OEM Partner”) would mass-produce the vehicle using Nikola’s prototype design and engineering.

In fact, the production of Badger prototypes was outsourced, at MILTON’s direction, to third parties, and the components were not being built from the ground up.  Rather, Nikola purchased several Ford F-150 pickup trucks – a highly popular model to which MILTON had claimed his Badger would compare favorably – to use as “donor” or “surrogate” vehicles, and used the vehicles’ chasses and bodies as the base for constructing the Badger prototypes.  At MILTON’s direction and with his approval, engineers working on the Badger prototypes took steps to hide from the public that Ford donor vehicles were used to produce the prototypes.  And the two prototype Badgers that ultimately were built were little more than show cars and not real consumer vehicles.  For example, the Badger prototypes could not be driven on roads because some of the parts of the body were carbon fiber composite and because they had not undergone safety testing.  The Badger prototypes also lacked certain parts, such as airbags and an operable HVAC.  Similarly, many of the lights in the interior of the Badger prototypes were not operable and were merely backlit.

Moreover, despite MILTON’s claims that Nikola’s OEM Partner would manufacture the Badgers that Nikola had designed and engineered, and that the vehicles would be “70 percent Nikola 30 percent [the OEM Partner],”  the OEM Partner planned to build the Badger based on one of its own electric vehicle platforms.  In fact, the OEM Partner planned to use no Nikola technology or engineering, except for the general aesthetic and potentially the infotainment system.  No one at the OEM Partner ever saw the Badger prototypes that Nikola had been working on and they were not part of the OEM Partner’s engineering or development plans.

Hydrogen Production

MILTON also made numerous false and misleading claims regarding Nikola’s hydrogen business.  Specifically, and among other things, MILTON made false and misleading claims regarding the status of Nikola’s production of hydrogen, the current cost of producing hydrogen, the cost of electricity to produce hydrogen, Nikola’s ability to produce hydrogen using clean energy, and the status of permits related to hydrogen production. 

For example, in or about March 12, 2020, MILTON stated, “Up until Nikola came in the market, hydrogen was around $16 a kilogram, U.S. dollars. Now Nikola is producing it well below $4 a kilogram.” In fact, Nikola has never produced any hydrogen at any price, nor at the time could it have produced hydrogen for below $4 per kilogram.  To the contrary, Nikola has never obtained a permit to produce hydrogen or installed the equipment necessary to produce hydrogen.  At the time that MILTON was claiming that Nikola was producing hydrogen for less than $4 per kilogram, it was in fact purchasing hydrogen from a supplier for $16 per kilogram.

As another example, in a July 17, 2020, podcast, MILTON stated, among other things, that when Nikola first started, hydrogen production stations “were going to be 50 to 60 million,” but now Nikola is “down to, you know, 14, 14 million bucks” due to the “standardization of a hydrogen station.”  In truth and in fact, Nikola had not built a single hydrogen production station, much less “standardized” hydrogen production stations.  At the time, due to the high cost of electricity in California, Nikola was seriously considering moving away from its plan to produce hydrogen on-site at all of its fueling stations, and instead was considering producing hydrogen at a central location through liquefaction.  Milton was well aware of the issues with Nikola’s hydrogen station plan, but directed that Nikola employees “[k]eep the liquefaction discussions quiet from the market.”

In House Technology

MILTON has repeatedly claimed that Nikola has intellectual property rights over important components of its semi-truck line.  While MILTON has stated that Nikola outsources many parts of the trucks, like its tires or windshield, MILTON has also repeatedly stated that Nikola makes the most important parts, including batteries and the powertrain, of the semi-trucks “in house.”  For example, in or about June 2020, MILTON tweeted, “We do our own batteries at Nikola and have since day 1,” and “All the technology, software, controls, E axle, inverters etc. we do internally.” 

In fact, although Nikola has partnered with various companies to try to develop proprietary battery technology, these efforts were not successful, and Nikola has not successfully developed technology internally, and the batteries it has planned to use in its semi-trucks were developed and manufactured by third parties.  Similarly, Nikola has not produced an inverter in house and the inverters it planned to use in its semi-trucks were developed and manufactured by third parties.

Reservations

MILTON has also repeatedly misstated the nature of Nikola’s reservations to suggest that reservations made for its semi-trucks are firm and binding.  For example, in or about July 2020, MILTON claimed that Nikola had “billions and billions of dollars with the contracts” and that these reservations were not “just like, a non-committal thing,” but instead were “like, sign on the dotted line, billions and billions and billions and billions of dollars in orders.”

In fact, although Nikola did have 14,000 reservations for its sleeper semi-truck, with the exception of a reservation for approximately 800 semi-trucks, which is binding provided that Nikola meets certain conditions, these reservations were non-binding and cancellable at any time for any reason.

Milton’s False and Misleading Statements Induced Retail Investors to Purchase Nikola Stock 

After MILTON made the false and misleading statements regarding Nikola’s products and capabilities described above, tens of thousands of retail investors purchased Nikola’s stock between in or around March and September 2020.  During this same period, certain institutional investors who had access to more complete information regarding Nikola’s products and technology, including some who received Nikola shares as part of the SPAC transaction, were able to sell their stock for a significant profit.

The value of Nikola’s stock plummeted after the fact that certain of MILTON’s statements had been false and misleading was disclosed to the market in or around September 2020.  As a result, many Nikola stockholders, including the retail investors who were the target of MILTON’s scheme, suffered significant financial losses, in some cases totaling in the tens or hundreds of thousands of dollars and compromising their financial security or retirement savings. 

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MILTON, 39, of Oakley, Utah, is charged with two counts of securities fraud and one count of wire fraud.  The securities fraud counts carry maximum penalties of 20 and 25 years in prison, respectively. The wire fraud count carries a maximum penalty of 20 years in prison. The maximum potential sentences in this case are prescribed by Congress and are provided here for informational purposes only, as any sentencing of the defendant will be determined by the judge.

Ms. Strauss praised the outstanding work of the USPIS, which jointly conducted this investigation with special agents from the U.S. Attorney’s Office.  Ms. Strauss further thanked the U.S. Securities and Exchange Commission, which today filed a parallel civil action.

The prosecution of this case is being overseen by the Office’s Securities and Commodities Fraud Task Force.  Assistant U.S. Attorneys Jordan Estes, Matthew Podolsky, Nicolas Roos are in charge of the case.

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