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19 tweets,
6 min read
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It's posted.
RESPONSE TO ORDER TO SHOW CAUSE
Docket: plainsite.org/dockets/3cioda…
Document: plainsite.org/dockets/downlo…
Docket: plainsite.org/dockets/3cioda…
Document: plainsite.org/dockets/downlo…
Exhibits are now posted on the docket as well. $TSLA
Here's the table of contents. Already we're looking at materiality and then a complete joke of an argument at the end. Come on. 
Elon Musk, paragon of diligent court order compliance. Wow. Just wow. $TSLA
This is completely and utterly false, and really a terribly stupid argument to make. Unlikely any judge will agree that their own ability to issue a consent order post legal violation is unconstitutional. But @nabihasyed is the real expert here.
"...Such a broad prior restraint would violate the First Amendment. Moreover,..." Hey, uh, guys. Guys. Where's the citation. You didn't cite a single case here. Not one. Guys?
See if you can spot the difference.
Image 1: @Elon Musk's Signed Consent Judgment
Image 2: Today's Response to the Order to Show Cause
Image 1: @Elon Musk's Signed Consent Judgment
Image 2: Today's Response to the Order to Show Cause
But this is all smoke and mirrors, because the actual signed Consent Judgment says "pre-approval of any such written communications that contain, OR REASONABLY COULD CONTAIN, information material..." (emphasis added)
This sounds right. If there was a meeting where Elon's lawyers told him the smart approach (seeking forgiveness), that approach was clearly rejected by somebody, and no lawyer in their right mind would have come up with this as a first draft. Unbelievable.
Skipping around a bit, but let's take a look at Elon's declaration. Because the FIRST THING he says is already amazing in its audacity. A) He had to sue to be called a co-founder and can only do so thanks to a settlement. B) THE co-founder? Inherently contradictory, don'chathink?
He's willing to share credit with all zero of the other co-founders. The rest of the declaration is just drivel showing quite convincingly that Elon does not in fact operate in good faith. The SEC has every incentive now to wipe the floor with him.
When it comes to Musk's "statement of pride," the legal citation his lawyers point to is somehow...different... Maybe it's the utter lack of numbers in the quotes being analyzed (at least as stated in the Second Circuit's opinion).
The narcissism really shines through here. Sure, Musk respects the Court, so long as the Court thinks that his internal secret memos supersede federal law and judicial review. They don't.
Put another way, Tesla isn't really in a position to "explain" much of anything to the SEC.
Put another way, Tesla isn't really in a position to "explain" much of anything to the SEC.
There are so many gems in this garbage brief it's hard to believe. Here, Elon's lawyers argue that the SEC *publishing* his 60 Minutes interview transcript in a public court record, subject to intense media scrutiny, is censorship. So many people know what he said, he can't talk!
So basically the argument is that Elon's immaterial evening tweets were totally irrelevant. Utter nonsense. No one cared. But, Your Honor, these silly whims and statements of pride were *such important vital facts* that the community absolutely had the right to know about them.
Overall impression: this is a HORRENDOUS defense of Musk. Far, far worse than expected. Probably largely due to pressure from Elon himself, but also just amazingly bad overall. That said, it could still work. But there's hope for some very serious questions from Judge Nathan.
Not only does he think his struggling enterprise can tell the SEC how it should enforce securities law, but he thinks he knows the First Amendment better than anyone else. And he does not. Quite a bluff with very high stakes.
Great catch. A professional brief would have revolved around this change of heart. "Elon is SO SORRY he misconstrued the Consent Order but ever since you hauled his ass back to court he's been doing it right." But that's not what we just read. At all.
