Elon Musk and Tesla’s legal team take a stand against SEC in bold response

Elon Musk and his legal team are taking a stand against the Securities and Exchange Commission’s (SEC) motion to hold the CEO in contempt of court.

Responding to an imposed March 11 deadline by U.S. District Judge Alison Nathan, Musk’s legal team argued that the CEO’s actions on Twitter did not violate his previous settlement with the SEC at all. The filing also argues that Musk correctly used his discretion to determine that the February 19 tweet did not contain information that could be reasonably considered material to Tesla. Instead, the tweet and its following clarification are better understood as a “proud and optimistic restatement of publicly disclosed information.”

Musk’s legal team not that the Tesla CEO had significantly cut back his Tesla-related Twitter habits following his settlement with the SEC last year, showing that he is taking the terms of his agreement seriously. The lawyers also pointed out that the SEC’s interpretation of its settlement with Musk raises First Amendment issues.

“The Order as the SEC interprets it would raise serious First Amendment issues and implicate other constitutional rights. The SEC seeks to rewrite the Order to eliminate Musk’s discretion, effectively requiring Musk to seek pre-approval of any tweet that relates to Tesla, regardless of its significance, prior dissemination, or nature. Such a broad prior restraint would violate the First Amendment. Moreover, the SEC seeks to procure through a contempt proceeding enforcement power that is far broader and less clearly defined than the power Congress has granted it via statute. The Court should construe the Order narrowly to avoid applying it in a way that would raise significant constitutional concerns,” Musk’s lawyers wrote.

Musk’s legal team further pointed to the SEC’s mention of the CEO’s 60 Minutes interview, where he stated that he respects the law but not the SEC, as a sign that the agency appears to be retaliating against Musk. “This contempt action, following Musk’s sincerely-held criticism of the SEC on 60 Minutes, also reflects concerning and unprecedented overreach on the part of the SEC,” Musk’s lawyers added.

Elon Musk’s strong response to the SEC will likely be polarizing. Musk and the SEC have butted heads in the past, and each time it happened, TSLA stock was affected. When the SEC asked a judge to hold Musk in contempt on February 26, Tesla stock was adversely affected, plummeting over 3% after-hours after the announcement. Ironically, Musk’s Twitter announcement on February 19 did not appear to affect the company’s stock at all, as the posts were uploaded after trading hours.

The SEC’s recent row with Elon Musk started after the CEO posted a series of tweets on February 19. In one of the posts, Musk stated that “Tesla made 0 cars in 2011, but will make around 500k in 2019.”  A few hours later, Musk posted a clarification, stating “meant to say annualized production rate at end of 2019 probably around 500k, i.e., 10k cars/week. Deliveries for (the) year still estimated to be about 400k.” The figures were mentioned by Musk during Tesla’s first-quarter earnings call when he stated that Tesla could probably produce “maybe in the order of 350,000 to 500,000 Model 3s” this 2019.

Elon Musk’s response to the SEC’s recent request to hold him in contempt could be accessed here.