, 22 tweets, 4 min read Read on Twitter
1/ A few observations about the SEC's contempt motion. First, while both $TSLA and Musk were sued back in September, and both signed consent judgments, the SEC has filed its motion only against Musk.
2/ The SEC has until the end of the day tomorrow to file a reply brief. This follows the typical cadence of motion, response, reply. Sometimes a non-moving party will ask for a "sur-reply," but that's rare and disfavored.
3/ There's no hearing tomorrow. Just the electronic filing a brief that will likely be 10-15 pages or so. Then the parties have another week (until March 26) to advise the Court whether they want an evidentiary hearing.
4/ Such a hearing is a mini-trial in front of the Judge, where live witnesses would be sworn and examined. I don't expect Musk to request such a hearing; it would expose him to cross-examination, and there's no telling where that would go.
5/ Plus, my sense is he would make a lousy witness. Musk's lawyers know this even if he doesn't. I'm guessing it was Musk who goaded his lawyers into accusing *the SEC* of manipulating the $TSLA share price. If I'm his lawyer, I don't want him on the stand.
6/ While I'm less certain about the SEC, I don't expect it to ask for an evidentiary hearing either. Principally because its case is very strong just on the documentary evidence already before the Court.
7/ Also, Musk's lawyers are likely to have more trial experience than the (younger) SEC attorneys. They may make a better showing in the courtroom. Though that's a very small point. A judge will be far less impressed with theatrics than a jury.
8/ Given the scheduling, it's unlikely the contempt motion will be decided before March 27. If there's an evidentiary hearing, that will push the matter well into April. Hearing or no, the Court will take time to prepare a carefully written opinion outlining her reasoning.
9/ Of course, the parties might settle the case before the Court decides. It's a good surmise that, like most judges, U.S. District Court Judge Nathan would prefer for the parties to reach some settlement and forego forcing a court order.
10/ However, Musk's aggressive posture in his briefing, and $TSLA's almost as aggressive posture in its March 11 letter, might make one less sanguine than one might otherwise be about settlement prospects. If we don't hear of a settlement by March 26, I doubt there will be one.
11/ Okay, let's assume the parties fail to settle. In each consent judgment, the Court expressly retained jurisdiction over the matter "for purpose of enforcing the Final Judgment." So, Judge Nathan will be looking for a way to hold Elon Musk to the deal he made.
12/ How to do that? Another fine is surely possible. However, Musk wasn't phased by $20 million. Would a higher number work? At some point, even a multi-billionaire is vexed at stroking a check that large.
13/ There are instance of judges jailing contemptuous parties to force compliance with an order, but that's unusual, and I cannot imagine that here. Nor can I imagine the Court seeking to re-engineer $TSLA's corporate governance by, say, removing Musk as CEO. That won't happen.
14/ Interestingly, the SEC has not requested any particular form of relief. Perhaps it will in its reply brief. If not, perhaps the Court will ask the SEC what remedy it proposes. The Judge truly is in an awkward spot. Mr. Musk simply refuses to obey, and he's not an easy case.
15/ The SEC has the right to ask the Court to vacate the judgments and reinstate its September lawsuits. However, that right is only for a violation of defendants' agreements never to publicly deny the SEC's factual claims in the lawsuits. That hasn't happened. At least not yet.
16/ If the SEC is not satisfied with whatever remedy Judge Nathan might order in the contempt proceeding, it has other paths open to it. It has the right to "make reasonable requests for further evidence of compliance" with the judgments. Indeed, it has already done so. Examples:
17/ The SEC could seek a contempt motion against $TSLA for failing ever to require Musk to submit even a single one of his tweets for pre-approval. (Though, what Judge Nathan does with the contempt motion against Musk will indicate how likely success in any such effort would be.)
18/ The SEC, outside the realm of the proceedings now before Judge Nathan, could file a lawsuit against Musk, or $TSLA, or both, on grounds unrelated to the "funding secured" lawsuit.
19/ Among many other things, the SEC might well pressure $TSLA, no matter what happens in the contempt proceedings, to file an 8-K with definitive 2019 guidance on production and deliveries. Right now, it's a smorgasbord from which to choose.
20/ Three people who ought to be sitting up and paying close attention right now: the members of $TLSA's Disclosure Controls Committee, Brad W. Buss, Antonio J. Gracias, and James Murdoch. All the evidence suggests you've been asleep at the switch, guys. And the SEC is on to you.
21/ Final thought: the Maxwell acquisition is hanging fire, with a registration statement still not approved. $TSLA may need to raise capital very soon, and very badly. So, why is the Board allowing its CEO to travel down this reckless path? How far will it let him go? TBD.
phased? okay, fazed. oh, well.
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