As I have been writing code all day and really don't want to read those documents (no matter how many lines they've spaced), I'll wait patiently for a summary
That's what I'm here for! :biggrin::tongue:
There's really nothing surprising in the responses from EM and TM. Of the two documents, the first one (the "Demurrer" -- which is a fancy way of saying they're pressuring testing the validity of the Complaint) is arguing a lot of technical points regarding whether ME's claims are for "wages" or not. We should all ignore this -- it's a highly relevant legal question because if any of the money allegedly owed ME are "wages", the amount he could receive is much greater under California law because there are greater penalties for failing to pay a "wage" as opposed to a contractual amount owed (such as severance). (n.b., California law is totally insane on this stuff -- in the employment law field, we call it the "People's Republic of California" because these employment statutes are so difficult for employers to comply with). TM's arguments are fairly strong on these points, although as they note, much of this discussion is "arguendo", meaning that it only comes into play if ME is owed anything at all, which is a threshold question that needs to be addressed before determining any damages.
There are a couple of interesting arguments in the Demurrer -- first, that ME isn't entitled to his severance or stock options because (as he admitted in his Complaint) he disparaged TM and EM in his blog post. His severance agreement had a non-disparagement clause, so therefore he isn't entitled to his remaining severance payments or stock options. As discussed previously, TM and EM are on fairly solid legal ground on this argument, but it's kind of a dick-ish move (technical legal term :wink
over one blog post that was fairly promptly removed upon request. A judge looking to throw a bone to the plaintiff might read into such an agreement a reasonable "cure" provision, meaning that it's not a breach if ME promptly cured the problem by deleting the post (which he apparently did). It will really depend on how hard-ass the judge is and whether s/he will rule on the strict letter of the contract and law, or try to give ME something by ruling for him on this issue.
The Demurrer also argues that the drive train was already upgraded, so there's nothing for ME to really claim here, other than sour grapes. That's a pretty solid legal argument.
The anti-SLAPP document is much more interesting -- I had forgotten about California's strong anti-SLAPP law, and this was an excellent use of it by EM and TM's attorneys. Basically, the anti-SLAPP law says you can't file a lawsuit against someone for exercising their free speech rights about something important to the public interest. Without counter-suing, EM has put the pressure back on ME because there are damages against ME if he is found liable for violating the anti-SLAPP law. In order to qualify under the anti-SLAPP law, the statements had to be about something "in the public interest." That's a fairly broadly defined term, and the production of the first EV vehicle of its type and range probably would qualify.
In addition, EM takes the opportunity to "set the record straight" from his perspective by telling a lot of seemingly irrelevant (to the legal case) facts about the founding and buildup of TM and the Roadster, and ME and EM's roles in that. I'm sure it was cathartic for him to make that declaration and get these facts "on the record."
EM's lawyers may have overlooked something on the defamation claim -- they assume that ME is a "public figure", which places a much higher burden on them to prove that EM's statements were defamatory because they then require "malice". They do not provide a fallback argument of "even if ME isn't a public figure, it's still not defamation because ....", which I definitely would have done if I were them. Strategically, that was probably a mistake, because I'm not 100% certain that they can prove that ME was a "public figure" (think of the typical "public figure" being a movie star with a defaming story in the National Enquirer). If I were ME's lawyers, I would immediately pounce on this and say ME is not a traditional "public figure" and a lower standard applies, and because EM didn't address that standard in his response, that claim should survive.
However, EM then makes his strongest legal arguments on why no defamation occurred -- (1) the statements alleged weren't made by EM (which was a glaring weakness in ME's Complaint), and (2) some of the alleged false statements weren't about ME, but about EM (such as when he graduated college). Technically, ME put that in the Complaint to demonstrate EM's propensity for lying, but that's a fairly weak argument to make and was an easy softball for EM to hit in this motion. Finally, (3) EM argues that many of the alleged defamatory statements are opinion and not fact, and/or (4) are not categorically false statements.
All in all, this is a thorough response, and gives EM and TM the decided advantage in the case, with the burden weighing heavily on ME to prove his case. With TM paying the bills (EM didn't even bother getting separate counsel -- Wilson Sonsini is representing both he and TM), I predict it will be a very long, hard slog for ME to pursue and win anything substantial on these claims, and he faces the legitimate possibility of having to pay EM/TM and/or their lawyers as a matter of course in having the Demurrer granted in whole or in part, or through the anti-SLAPP law. I imagine even a small payment would be a giant slap in the face to ME under these circumstances.