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Re:Nikola admits prototype was rolling downhill in promotion... by anigbrowl on Monday September 14, 2020 @02:31PM (#24473457)
I really think that false statements made by commercial entities should be prosecuted as fraud. It's one thing to engage in vague sales talk like 'the new SuperTech Blinkenlights will turbocharge your actuarial skydiving research!!', but when you're making claims of having actually existing technology (which you may not be ready or willing to patent, but do want to raise money with), the public has an interest in protecting itself from fraud.

Perhaps there should be some requirement to pay for independent professional witnesses, sort of like observers who validate Guinness world records as having met some (negotiable) standard of existing in the real world while being bound not to comment on the specifics of how it was achieved.

Re:Nikola admits prototype was rolling downhill in promotion... by roywiggins on Monday September 14, 2020 @02:48PM (#24473637)
Ah, but they have an 'airtight' defense!

> "Nikola never stated its truck was driving under its own propulsion in the video," Nikola wrote. "Nikola described this third-party video on the Company’s social media as 'In Motion.' It was never described as 'under its own propulsion' or 'powertrain driven.'

Re:Nikola admits prototype was rolling downhill in promotion... by snowwrestler on Monday September 14, 2020 @02:55PM (#24473734)
You laugh, but if we make this a matter of regulatory oversight, this sort of word parsing is exactly what every case will come down to.
Re:Nikola admits prototype was rolling downhill in promotion... by vlovich123 on Monday September 14, 2020 @03:14PM (#24473934)
Or you just look through the communications surrounding this video during discovery to see if there was a pattern establishing intent to mislead investors.
Re:Nikola admits prototype was rolling downhill in promotion... by swivelmaster on Monday September 14, 2020 @03:37PM (#24474196)
Bingo. Subpoena their emails and undoubtedly their whole defense falls apart.
Re:Nikola admits prototype was rolling downhill in promotion... by Retric on Monday September 14, 2020 @03:57PM (#24474415)
The article suggested that it was more than just a video at issue. Milton said. "This thing fully functions and works, which is really incredible."

Further, internal emails not just public statements are often used to decide if something was intended to deceive or not.

Re:Nikola admits prototype was rolling downhill in promotion... by 6gvONxR4sf7o on Monday September 14, 2020 @04:15PM (#24474611)
There are 'reasonable person' laws all over. Maybe there should be one to apply here. Like 'unlimited* data' plans technically have fine print redefining the word unlimited, but a reasonable person will see the ad across the street and be misled.
Re:Nikola admits prototype was rolling downhill in promotion... by sellyme on Tuesday September 15, 2020 @03:07AM (#24478613)
Also even if it wasn't fine print, it's still comically illegal. Imagine someone saying "Our cereal cures cancer! Where cancer is defined as 'hunger'."
Re:Nikola admits prototype was rolling downhill in promotion... by pbhjpbhj on Monday September 14, 2020 @03:57PM (#24474412)
Fraud is about intent. They intended to defraud, that's the salient fact.
Re:Nikola admits prototype was rolling downhill in promotion... by mbreese on Monday September 14, 2020 @04:23PM (#24474697)
They also stated that investors at the time were aware of the limitations. If that is true, then who would have been defrauded?

I’m not trying to defend them, but at that stage of the (private) company, if they were honest with investors then is there an issue? Where is that line? If they weren’t honest with them, then that’s a whole other story.

(And I’m not sure you can assume they were in fact honest with investors.)

Re:Nikola admits prototype was rolling downhill in promotion... by jfoutz on Monday September 14, 2020 @04:34PM (#24474825)
NKLA I thought was around for a couple years. Maybe major shareholders were informed?
Re:Nikola admits prototype was rolling downhill in promotion... by mbreese on Monday September 14, 2020 @04:41PM (#24474890)
Were they public or private at the time?

(Because if they were public, that would be a problem...)

Re:Nikola admits prototype was rolling downhill in promotion... by jfoutz on Monday September 14, 2020 @05:03PM (#24475123)
let's see - "Nikola Motor Company stock ticker is NKLA. It went public on the NASDAQ on June 4, 2020." (random google search)

but the article indicates "When Nikola Motor Company founder Trevor Milton unveiled a prototype of the Nikola One truck in December 2016, he portrayed it as fully functional."

So there you go!

Re:Nikola admits prototype was rolling downhill in promotion... by kempbellt on Monday September 14, 2020 @03:27PM (#24474096)
In other words "I'm not touching you..." but the adult version.
Re:Nikola admits prototype was rolling downhill in promotion... by xkjkls on Monday September 14, 2020 @02:53PM (#24473704)
tbh thats probably legalistically enough for them to avoid getting sued

But the very idea that "yeah, you're right on all the facts, its just that we didn't really 'lie'" isn't a great defense of the business

Re:Nikola admits prototype was rolling downhill in promotion... by lordnacho on Monday September 14, 2020 @03:03PM (#24473820)
The law normally considers what a reasonable person would think, doesn't it? Who would think it was anything other than moving under its own power?
Re:Nikola admits prototype was rolling downhill in promotion... by xkjkls on Monday September 14, 2020 @03:12PM (#24473916)
It depends on the circumstance. In the case of an investor, there's much more assumed due diligence than just "what a reasonable person would think".
Re:Nikola admits prototype was rolling downhill in promotion... by lordnacho on Monday September 14, 2020 @03:43PM (#24474256)
If the guy shows you a video, are you gonna actually ask him whether it was what it looks like?

I guess you ought to kick the tyres on the real thing though.

Re:Nikola admits prototype was rolling downhill in promotion... by awb on Monday September 14, 2020 @04:00PM (#24474446)
Investors are supposed to conduct their own due diligence which could include talking to the engineers or setting up a demo under mutually agreed conditions at which point the difference between "in motion" and "driving" would be uncovered.

It's definitely not a good look though.

Re:Nikola admits prototype was rolling downhill in promotion... by duskwuff on Monday September 14, 2020 @10:13PM (#24477252)
Context matters too. No reasonable person would expect a company to post a promotional video of their vehicle "in motion" just to show off that it has wheels that can roll.
Re:Nikola admits prototype was rolling downhill in promotion... by valuearb on Monday September 14, 2020 @05:07PM (#24475171)
The CEO directly said it was a working truck at the time. Today’s press release is skirting that fact.
Re:Nikola admits prototype was rolling downhill in promotion... by BigCatStuff on Monday September 14, 2020 @02:45PM (#24473597)
I agree that it should be fraud, but I'm not sure how the SEC defines fraud.

To me, the whole NKLA situation feels like a giant Kickstarter scam.

Re:Nikola admits prototype was rolling downhill in promotion... by roywiggins on Monday September 14, 2020 @02:50PM (#24473667)
Everything everywhere is securities fraud.

> contributing to global warming is securities fraud, and sexual harassment by executives is securities fraud, and customer data breaches are securities fraud, and mistreating killer whales is securities fraud, and whatever else you’ve got. Securities fraud is a universal regulatory regime; anything bad that is done by or happens to a public company is also securities fraud, and it is often easier to punish the bad thing as securities fraud than it is to regulate it directly.

https://www.bloomberg.com/opinion/articles/2019-06-26/everyt...

The problem is, who was defrauded? The investors, I guess, but if they sue then they can only collect money from the company that they own anyway. It's not obvious that's a money-gaining proposition.

Re:Nikola admits prototype was rolling downhill in promotion... by andrewmutz on Monday September 14, 2020 @02:57PM (#24473763)
The investors could bring a derivative suit against the officers of the corporation. They wouldnt be collecting from the corporation, but from the officers of the corporation (https://en.wikipedia.org/wiki/Derivative_suit).

Presumably it would not be feasible to collect large sums from the officers, but they frequently do have D&O insurance policies that could kick in (https://en.wikipedia.org/wiki/Directors_and_officers_liabili...)

Re:Nikola admits prototype was rolling downhill in promotion... by xkjkls on Monday September 14, 2020 @02:55PM (#24473740)
Not a money-gaining proposition, but that's why some CEOs should go to jail. We need to create an environment where fraud like this isn't profitable or sustainable.
Re:Nikola admits prototype was rolling downhill in promotion... by LatteLazy on Monday September 14, 2020 @03:29PM (#24474118)
Fyi, fraud is notoriously hard to convict on and even when large frauds are successfully prosecuted, the penalties are quite small. The SEC also can't be seen to be "hammering entrepreneurs" or let its conviction rates drop. So why get involved?
Re:Nikola admits prototype was rolling downhill in promotion... by Miraste on Monday September 14, 2020 @04:02PM (#24474462)
Apparently institutional investors are just Kickstarter backers with more money.
Re:Nikola admits prototype was rolling downhill in promotion... by ponker on Monday September 14, 2020 @04:05PM (#24474496)
The major difference is that Kickstarter “investors” have no upside exposure.
Re:Nikola admits prototype was rolling downhill in promotion... by ganoushoreilly on Monday September 14, 2020 @02:49PM (#24473641)
I agree. It seems like the Theranos of the EV world.
Re:Nikola admits prototype was rolling downhill in promotion... by xkjkls on Monday September 14, 2020 @02:54PM (#24473728)
This is currently the golden age of fraud. Jay Clayton has destroyed any set of teeth that the SEC once had.

This is why people have been so critical of Elon Musk. Elon Musk's flippant behavior engenders worse and worse.

Re:Nikola admits prototype was rolling downhill in promotion... by paxys on Monday September 14, 2020 @02:52PM (#24473688)
They can, of course, be prosecuted for fraud if someone brings a valid complaint against them. Is there any evidence that any of their investors were tricked into giving them money or were made false promises?
Re:Nikola admits prototype was rolling downhill in promotion... by SMAAART on Monday September 14, 2020 @03:12PM (#24473917)
Disclaimer: I am not a lawyer.

Well, we do have laws about

* False Advertisement * Investors' Fraud

Unfortunately they are not applied, or not applied consistently; and this is just one of the many examples that I come across on a weekly basis.

What makes matters worse is that when talking about it with people at work or so, they don't seem to care enough and feel it's not a problem.

It is a problem, it's a slippery slope into lawless chaos.

Re:Nikola admits prototype was rolling downhill in promotion... by markdown on Monday September 14, 2020 @04:02PM (#24474467)
> Well, we do have laws about False Advertisement

If such laws exist, they aren't worth the paper they're printed on.

Re:Nikola admits prototype was rolling downhill in promotion... by kencausey on Monday September 14, 2020 @04:10PM (#24474548)
I hope you realize that is simplistic. Is the bar for enforcing such laws very high and do many often slip under it? Yes. And yet prosecutions under such laws are happening constantly.
Re:Nikola admits prototype was rolling downhill in promotion... by golergka on Monday September 14, 2020 @03:56PM (#24474399)
To build real motivation for start-up founders not to commit fraud, they would have to be persecuted even when they succeed. But now, if you push through and eventually prevail, everybody wins and nobody cares; may be some former competitors who tried to play it right, but now they're history and have no leverage. Who's going to go after Facebook for their previous shenanigans? Unlike Nikola, their early investors are quite happy.

And as long as that's the case, people crazy and risky enough to become startup founders will never be persuated not to do it.

Re:Nikola admits prototype was rolling downhill in promotion... by sschueller on Monday September 14, 2020 @03:18PM (#24473989)
Like Tesla's full self driving. It doesn't exist and will not exist for a long time.
Re:Nikola admits prototype was rolling downhill in promotion... by bryanlarsen on Monday September 14, 2020 @03:39PM (#24474219)
One's a bad prediction, the other's a lie. There is a difference.
Re:Nikola admits prototype was rolling downhill in promotion... by smt88 on Monday September 14, 2020 @03:50PM (#24474318)
Tesla's software is currently called "Full Self-Driving Capability", which is both a bad prediction and a lie.
Re:Nikola admits prototype was rolling downhill in promotion... by jryle70 on Monday September 14, 2020 @10:04PM (#24477204)
Artificial Intelligence is the single most overused buzzword at the moment. Just an example among many:

"We’re building an AI-powered writing assistant that helps people communicate and connect"

https://www.grammarly.com/jobs

Compared to AI "Full Self-Driving Capability" isn't any more implausible. Yet we don't call those AI companies fraud.

This is how Tesla marketing Model 3's Autopilot. Marketing speak for sure, but lie?

"Autopilot enables your car to steer, accelerate and brake automatically within its lane. Full Self-Driving Capability introduces additional features and improves existing functionality to make your car more capable over time"

https://www.tesla.com/model3

Re:Nikola admits prototype was rolling downhill in promotion... by nordsieck on Monday September 14, 2020 @04:20PM (#24474659)
> Tesla's software is currently called "Full Self-Driving Capability", which is both a bad prediction and a lie.

Nowhere does Tesla claim that their cars currently have the ability to do "Full Self-Driving".

They sell a package which promises, in the future, to enable "Full Self-Driving" on the associated car.

Re:Nikola admits prototype was rolling downhill in promotion... by sschueller on Monday September 14, 2020 @04:27PM (#24474743)
The average life of a car is 8 years or 150,000 miles. I doubt FSD will be available within 10 years.
Re:Nikola admits prototype was rolling downhill in promotion... by nordsieck on Monday September 14, 2020 @04:30PM (#24474782)
> The average life of a car is 8 years or 150,000 miles. I doubt FSD will be available by then.

1. I don't know. I guess that's the risk people take when they buy the FSD package without a guaranteed date.

2. It's not clear to me that your average life numbers apply to Teslas.

Re:Nikola admits prototype was rolling downhill in promotion... by the-dude on Monday September 14, 2020 @04:16PM (#24474613)
It has the capability, it just does not exercise it.
Re:Nikola admits prototype was rolling downhill in promotion... by colejohnson66 on Monday September 14, 2020 @04:46PM (#24474939)
I think this is the rub. It depends on your definition of “capable.” While technically, it’s “capable” in the sense all Teslas have sensors they claim are enough, it’s not “capable” of using those sensors for self driving if there’s no code for it.
Re:Nikola admits prototype was rolling downhill in promotion... by sschueller on Monday September 14, 2020 @03:48PM (#24474302)
It's a lie just as Theranos was. It might be possible one day, it isn't in the near future.
Re:Nikola admits prototype was rolling downhill in promotion... by ric2b on Saturday September 19, 2020 @09:43AM (#24527367)
No, Theranos didn't just make promises, they said "we're doing this right now in our labs and with our partner, Walgreen".
Re:Nikola admits prototype was rolling downhill in promotion... by mschuster91 on Monday September 14, 2020 @03:42PM (#24474252)
> I really think that false statements made by commercial entities should be prosecuted as fraud.

In Germany, we have the "Gesetz gegen den unlauteren Wettbewerb", roughly translated as "law against unfair competition". It's a pretty old piece of law (1896), but unlike other laws in Germany this one is held reasonably up to date.

Stuff like we see here would be flat out prosecutable by any competitor.

Re:Nikola admits prototype was rolling downhill in promotion... by dsr_ on Monday September 14, 2020 @03:52PM (#24474342)
If Matt Levine weren't on break from his Bloomberg column, you can bet this would be an entry in his file "Everything is Securities Fraud". It wouldn't even be a controversial one.
Re:Nikola admits prototype was rolling downhill in promotion... by carriganisms on Monday September 14, 2020 @02:51PM (#24473672)
This is called due diligence, and it's on the investor to perform their own due diligence. For a product that isn't commercially available to consumers yet, due diligence should be enough.

In the case of something like Theranos, I thoroughly agree. Oversight of a commercially available product, especially one with health implications, is definitely necessary. Although it seems even these systems failed in the Theranos case.

Re:Nikola admits prototype was rolling downhill in promotion... by imglorp on Monday September 14, 2020 @03:16PM (#24473957)
There is actually the legal test of a Reasonable Person.

If they say they're going to sell trucks, and they present a truck doing truck things (moving), most people would assume it's a complete truck as portrayed. An empty shell is just fraud in the court, hopefully.

Re:Nikola admits prototype was rolling downhill in promotion... by awb on Monday September 14, 2020 @04:06PM (#24474504)
Agreed, but a reasonable person would also ask: "how well does it drive up hills?", "what are it's miles per charge?", etc. at which point the truth is uncovered.

It's not a good look, but you also shouldn't be investing based on what amounts to a commercial. This should be another stain for the company and another warning sign for investors, but we don't need a law against misleading promo videos because almost all are short on information and high on emotion. It's the investor's job to get the information behind the video.

Re:Nikola admits prototype was rolling downhill in promotion... by sib on Monday September 14, 2020 @03:09PM (#24473881)
While it's true that funders should perform due diligence, diligence for fundraising still relies on an underlying need for the entity raising funds to be truthful.

As an example, if you apply for a bank loan and falsify the application, you can still be charged with fraud and go to jail even though the bank potentially could have discovered the falsehood by hiring an investigator before issuing the loan.

Re:Nikola admits prototype was rolling downhill in promotion... by jbay808 on Monday September 14, 2020 @03:26PM (#24474077)
The harm caused by this kind of deception is not only to the investors (or to the deceivers, when they are found out). It also increases the general background level of distrust, which harms the honest.
Re:Nikola admits prototype was rolling downhill in promotion... by xkjkls on Monday September 14, 2020 @02:52PM (#24473686)
These systems where never triggered because of where Theranos was in the development process.
Re:Nikola admits prototype was rolling downhill in promotion... by R0b0t1 on Monday September 14, 2020 @03:04PM (#24473836)
The oversight is ostensibly someone figuring out it is a scam and filing a complaint with the district attorney so they can prosecute the scammer.
Re:Nikola admits prototype was rolling downhill in promotion... by ric2b on Saturday September 19, 2020 @09:45AM (#24527373)
That doesn't scale for public companies like Nikola, you can't have thousands of investors visiting the headquarters and asking questions.