Volkswagen could stop up in hot water over its “Voltswagen” internet marketing stunt

The scenario may have set the business at risk of jogging afoul of US securities law by wading into the murky waters of likely misleading investors.

“This is not the kind of thing that a liable world organization need to be executing,” reported Charles Whitehead, Myron C. Taylor Alumni Professor of Company Law at Cornell Regulation College.

In situation you missed it, this week the carmaker entered the spotlight just after announcing that, at minimum in The united states, it was transforming its name to “Voltswagen,” and would use the new identify in ads and on its electric automobiles. Volkswagen later backtracked and stated it can be undoubtedly not switching its identify and that the total factor was an April Fools’-inspired marketing and advertising ploy.

On Wednesday, it introduced nevertheless a different statement describing: “Volkswagen of The united states produced and carried out a promoting marketing campaign to attract attention — also with a wink — to Volkswagen’s e-offensive” and the start of its new ID.4 all-electric SUV in the United States.

But here’s the issue: People took the first, untrue assertion about the identify adjust very seriously.

Wall Avenue analysts even released steerage about what this sort of a change may well suggest for the carmaker’s strategic way. Wedbush analyst Dan Ives stated in a observe to traders Tuesday early morning that such a name transform “underscores VW’s obvious motivation to its EV brand name,” and went on to detail the marketplace opportunity for electrical motor vehicles in the United States, Europe and China in the coming several years.

Volkswagen is certainly investing greatly in electrical automobiles, but confusion in excess of the identify transform could prompt scrutiny from the Securities and Trade Fee or litigation from traders who experience misled by the joke. The Securities Exchange Act prohibits providers from creating untrue or deceptive statements to buyers.

“It truly is a great illustration of the electricity of the media and the have to have to be truly cautious about what you say simply because you can in no way know what will or won’t transfer a market,” mentioned Jonathan Richman, a associate at law company Proskauer. “From Volkswagen’s position of watch, this was meant to be amusing, but a person person’s amusement may be an additional person’s profit or reduction.”

Quipping about the standing of a small business that Volkswagen is positioning as additional environmentally welcoming also could irk buyers, specially in mild of the 2015 diesel emissions scandal the enterprise has been striving to place guiding it.

“Will the SEC inquire? Very well, of training course they will,” Whitehead reported. “It’s gotten ample publicity and persons are anxious about it and there are problems about no matter if or not corporations need to be performing this that I’m positive [the SEC is] heading to make a cellphone simply call.”

A representative from Volkswagen’s headquarters stated Wednesday afternoon the corporation had not been contacted by the SEC. The company declined to remark on the make a difference.

There is precedent for the SEC taking action versus cheeky statements regarding huge firms. In 2018, Tesla CEO Elon Musk settled with the SEC for $20 million soon after the company stated his tweet about securing funding to consider the company non-public at $420 a share — an obvious joke about weed — misled traders.

If the SEC ended up to look into the “Voltswagen” stunt, Whitehead stated, it would possible glance at whether the statement was supposed to manipulate the firm’s stock price tag or if shareholders would consider a identify improve (or the fact that the identify change was a joke) to be product info. Arguing both claim could be difficult.

On Tuesday, pursuing the identify change assertion, Volkswagen’s ADR stock briefly jumped practically 10%, just before closing practically flat (the firm’s shares have, however, been trending steadily upward in the latest months).

“I do not know that basically modifying the name, or not altering the identify for that make a difference, is heading to be deemed material … I will not think it rises to that stage,” Whitehead claimed. “These are all variety of gray areas, which is why a liable enterprise just will not go down this route.”

Richman extra: “To confirm a declare you have to prove intent, indicating that there was a mindful or at the very least a grossly reckless disregard of the reality below. I would imagine that if this really was intended as an April Fools’ joke, it is really heading to be pretty difficult to establish that Volkswagen supposed to deceive the industry.”

For its part, Volkswagen of The united states mentioned it “can not see any influence on the stock industry cost as a final result of the promotion marketing campaign.”

“This was not and is not the purpose of the campaign,” Volkswagen of The united states claimed in a Wednesday assertion to CNN Business enterprise. “It is a publicity evaluate in the context of the market place launch of the ID.4 and the e-mobility press in the Usa.”

A statement from Volkswagen’s headquarters earlier Wednesday reported that the corporation has also issued April Fools’ Working day press releases in the past: In 2003, it quickly renamed the German city of Wolfsburg, exactly where it is really headquartered, to “Golfburg” to advertise the release of the Golfing. And a lot of other companies have carried out April Fools’ pranks in the previous, far too, without the need of increasing the eyebrows of securities regulators.

But in the scenario of the “Voltswagen” assertion, “there was very little to indicate … that — nudge, nudge, wink, wink — this is definitely a joke, as opposed to the other gags that have been out there,” Whitehead mentioned.

In fact, the organization bundled some very unique facts in the title modify statement about what the change would suggest, which include that it would use “Voltswagen” on the chrome badges on the backs of its electric powered vehicle. (It is really not.) And it didn’t enable that the assertion asserting the purported title modify integrated no reference to April Fools’ Day — and it landed two days before the getaway.

As for the timing of the statement, Volkswagen of The usa stated it “had a entire social media and advertising marketing campaign about our e-mobility options that was thanks to roll out” amongst the time of the title change assertion and April 1, “when we ended up owing to announce that it was a joke.”

Volkswagen’s (VLKPF) stock fell approximately 4% on Wednesday in the wake of information of the debacle. And that is no joke.