Elon Musk’s job as Tesla Inc’s chief executive appeared safe on Thursday as a federal judge in Manhattan urged the billionaire to settle contempt allegations by the U.S. Securities and Exchange Commission over his use of Twitter.
At a hearing in Manhattan federal court, U.S. District Judge Alison Nathan gave both sides two weeks to work out their differences, and said she could rule on whether Musk violated his recent fraud settlement with the regulator if they failed.
The hearing appeared to lift an overhang over Tesla, as the SEC stopped well short of recommending Musk’s removal as chief executive or even from the electric car company’s board.
Instead, the regulator suggested that greater oversight of Musk’s communications, including the threat of new fines if he backslides, was punishment enough, at least for now.
“What this is to the SEC is strike two, and if there is another transgression they might seek a director and officer bar,” said Peter Henning, a law professor at Wayne State University in Detroit and a former SEC lawyer. “They are just trying to send a message: be more careful.”
Nathan had been asked to hold Musk in contempt over a Feb. 19 tweet, where the SEC said he improperly posted material information about Tesla’s vehicle production outlook without first seeking approval from its lawyers.
The SEC said pre-approval was a core element of the October 2018 settlement, which resolved a lawsuit over a tweet last Aug. 7 where Musk said he had “funding secured” to take Tesla private at $420 per share.
That settlement called for Musk to step down as Tesla’s chairman, and levied $20 million civil fines each on Musk and the Palo Alto, California-based company.
Musk declined to discuss the hearing as he left the courthouse, surrounded by a horde of reporters, photographers and television cameras, but said “I feel very loved here.”
In a statement provided later by Tesla, Musk said: “I have great respect for Judge Nathan, and I’m pleased with her decision today. The tweet in question was true, immaterial to shareholders, and in no way a violation of my agreement.”
TESLA ALSO FAULTED
Tesla’s share price tumbled 8.2% on Thursday, after the company on Wednesday night reported lower-than-expected vehicle deliveries, but recouped some early losses once Musk’s job no longer appeared imperilled.
The company built its reputation on luxury cars, but has faced several production challenges with its Model 3 sedan, which it hopes will reach a mass audience.
“Elon Musk was very well composed in the court today, which means he’s taking it seriously,” Craig Irwin, a Roth Capital Partners analyst who attended the hearing, said in an interview. He called Nathan’s order “a good outcome for Tesla investors.” Irwin rates Tesla “neutral.”
The battle concerned a tweet that Musk sent to his more than 24 million Twitter followers: “Tesla made 0 cars in 2011, but will make around 500k in 2019,” meaning 500,000 vehicles.
Four hours later, Musk corrected himself, saying annualized production would be “probably around” 500,000 by year end, with full-year deliveries totalling about 400,000.
The SEC said the earlier tweet conflicted with Tesla’s Jan. 30 outlook, when it targeted annualized Model 3 production exceeding 500,000 as soon as the fourth quarter, and projected 360,000 to 400,000 vehicle deliveries this year.
Musk’s lawyers countered that the earlier tweet contained nothing new, and that the SEC had conceded during settlement talks that Musk did not need pre-approval for all tweets about Tesla.
RESPECT FOR JUSTICE SYSTEM
At the hearing, SEC lawyer Cheryl Crumpton said a contempt finding could require Musk to file regular reports about how Tesla lawyers are overseeing his tweets.
Noting that Musk had called his $20 million fine “worth it,” Crumpton said the threat of higher potential fines might also be needed to show that further violations would be “not worth it.”
Musk is worth $20.7 billion, according to Forbes magazine.
Crumpton also faulted what she called Tesla’s “troubling” conduct. “Tesla still appears to be unwilling to exercise any meaningful control over the conduct of its CEO,” she said.
Tesla was not accused of contempt.
Musk’s lawyer, John Hueston, countered that the “ambiguity” of the settlement made “the hard penalty of contempt” unfair.
The “funding secured” tweet had sent Tesla’s share price up as much as 13.3 per cent. Musk’s privatization plan was at best in an early stage, however, and financing was not in place.
SEC Chairman Jay Clayton has said he does not favour draconian penalties that could harm investors, saying when Musk settled that “the skills and support of certain individuals may be important to the future success of a company.”
Musk remains an outspoken critic of the SEC.
Since the case began, he has dubbed the regulator the “Shortseller Enrichment Commission,” recalling his attacks on investors who sell Tesla stock short.
And in the early morning of Feb. 26, after the SEC filed its contempt motion, Musk tweeted: “Something is broken with SEC oversight.”
As he prepared to enter the courthouse, Musk told reporters: “I have a great respect for the justice system.”
Asked whether he also respected the SEC, Musk laughed, before turning to go inside.