Fact Checking
Well-Known Member
Relatively simple as I have discussed before. SEC is stating black letter law that this language of an agreement stands for itself and the only time you look at what a party intends is of you can't discern the meaning from the language itself. EM is saying IF the court can't figure out what the agreement means from the language, here is some indication of what the parties were negotiating . The SECis saying that is irrelevant because the agreement is clear AND if the is any question regarding intentions, they would like to add more information. This is the end of the last word deal. All the cards are.on the table.
Probably all cards are at the table, but not necessarily:
- If Judge Nathan indeed agrees with Elon's argument that the settlement does not specify whether Elon can exercise discretion, then she has to resolve that ambiguity, and there's two main paths offered by the filings:
- If she wants to determine "intent" then she has to rely on evidence - and (probably) has to give the SEC another round to submit more settlement negotiations evidence (to which Elon's team might want to submit more evidence, etc.)
- Or she could determine based on the constitutional arguments that the SEC's interpretation is unconstitutional and the only reasonable interpretation is what Tesla and Elon Musk are using.
I'm wondering whether this was deliberate: if the SEC is worried about losing this case then which would be the better outcome, to lose because they in effect mislead the court about the intent of the negotiations, or lose on some abstract constitutional grounds?
If I was Sheryl Crumpton I sure as hell would prefer not to lose on "intent" grounds, which would invite uncomfortable questions: "Why did the SEC file the contempt motion if they knew it perfectly well what the intent of the parties was?"
Which is I believe why they didn't contest Elon's evidence that underlines their constitutional arguments and offered some vague "we think there's more evidence" response regarding the settlement negotiations email trail ...
Which is fine with me - Elon winning this on constitutional grounds would be the most robust outcome for Tesla and Tesla shareholders. Or if Elon wins only on immateriality, with the constitutional arguments undecided, they could almost immediately file a motion for declaratory judgement to decide the broader constitutional arguments, to remove the considerable uncertainty in interpreting the consent decree.