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Polixenes
@Polixenes13
, 3 tweets, 1 min read Read on Twitter
1/ Musk's sur-reply said nothing about an evidentiary hearing, so we'll wait until March 26 to know. But in light of sur-reply, just to clear up the wild variance in 2019 guidance, it would be great if the SEC changed its mind, sought the hearing, and asked Musk a few questions:
2/ Right now, what is Tesla's 2019 production guidance? Its 2019 delivery guidance? How many deliveries do you anticipate in Q1? How many orders do you have in Europe? How many orders do you have in Asia? Are you at all involved in your mother's twitter account?
3/ The SEC probably won't request such a hearing. That said, there is nothing conciliatory or penitent about the Musk Sur-reply. It is yet more bravado, defiance, and contempt for the SEC. No matter what the Court does, I very much doubt the SEC is done with Musk or $TSLA.
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Polixenes
@Polixenes13
1/ A few further thoughts about the SEC's contempt motion. Prompted by a question from a friend who asked, "The Judge just has to rule on Musk's sur-reply motion today, right?" $TSLAQ
2/ My friend, I'm sure, was thinking that Elon Musk's attorney, John Hueston, had asked for permission to file a sur-reply of no more than 10 pages no later than March 22. And today is March 21.
3/ Well, this may surprise you but, no, Judge Nathan does not have to rule on that motion today. Or even tomorrow. Let's consider.
Read 9 tweets
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Polixenes
@Polixenes13
1/ Interesting. Elon's pit bull, John Hueston, wants to file a sur-reply in which he would "submit documentation reflecting the negotiation history between the SEC and Mr. Musk and Tesla." $TSLAQ
2/ I'm guessing the Court may allow the sur-reply, which would be due on March 22. As for that documentation of "negotiation history," though, Her Honor will no doubt be reminded of Rule 408 of the Federal Rules of Evidence. law.cornell.edu/rules/fre/rule…
3/ With very narrow exceptions, evidence about settlement discussions is inadmissible. The link sets forth the Rule and the reasons for it. But, let's face it, desperate times call for desperate measures. Fight, Elon, fight!
Read 3 tweets
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Polixenes
@Polixenes13
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.
Read 22 tweets

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