In a lawsuit filed earlier today in the United States Southern District Court of New York, the Securities and Exchange Commission says Musk “falsely indicated that, should he so choose, it was virtually certain that he could take Tesla private at a purchase price that reflected a substantial premium over Tesla stock’s then-current share price.” The lawsuit goes to says that the executive indicated “funding for this multi-billion dollar transaction had been secured, and that the only contingency was a shareholder vote.”
Despite these assurances, the SEC alleges that “Musk had not even discussed, much less confirmed, key deal terms, including price, with any potential funding source.”
Am considering taking Tesla private at $420. Funding secured.
— Elon Musk (@elonmusk) August 7, 2018
The lawsuit claims Musk’s tweet “Am considering taking Tesla private at $420. Funding secured” was false and misleading. The government goes on to say it was followed by a “series of additional materially false and misleading statements” including:
1) “My hope is *all* current investors remain with Tesla even if we’re private. Would create special purpose fund enabling anyone to stay with Tesla.”
2) “Shareholders could either to [sic] sell at 420 or hold shares & go private.”
3) “Investor support is confirmed. Only reason why this is not certain is that it’s contingent on a shareholder vote.”
The government says Musk “knew or was reckless in not knowing” that each of these statements was false and/or misleading because he “never discussed a going-private transaction at $420 per share with any potential funding source, had done nothing to investigate whether it would be possible for all current investors to remain with Tesla as a private company via a ‘special purpose fund,’ and had not confirmed support of Tesla’s investors for a potential going private transaction.”
Besides making false and misleading statements, the government claims Musk’s Twitter shenanigans “caused significant confusion and disruption in the market” and harmed investors. In particular, the government says Tesla stock closed up 10.98% from the previous day following the tweet.
The lawsuit seeks a “permanent injunction disgorgement, civil penalties, and a bar prohibiting Musk from serving as an officer or director of a public company.” If the government is successful, Musk would no longer be able to serve as the leader of companies such as Tesla, SpaceX and The Boring Company.
In a statement, the co-director of the SEC’s Enforcement Division, Steven Peikin, said “Corporate officers hold positions of trust in our markets and have important responsibilities to shareholders. An officer’s celebrity status or reputation as a technological innovator does not give license to take those responsibilities lightly.”