Tesla, TSLA & the Investment World: the Perpetual Investors' Roundtable

[generalenthu]

The stankmemes.com post on peace is not an option seems to now be squarely directed at the SEC.

 

[azaz]

“
Rebecca Roiphe, a professor at New York Law School, said the commission’s action “is a fairly extreme step, but it is unsurprising, given that Musk seems so unconcerned not only about the agreement but about the policies behind the securities law.”

“This is not an innocuous tweet,” she added. “Insiders have to be careful about revealing misleading information to the public.”

Ms. Roiphe said the motion could set the stage for the commission to later seek Mr. Musk’s removal as chief executive if he further violated the agreement. The court could also decide to impose a fine, which is typical in civil cases such as this, or impose other restrictions on Mr. Musk’s use of Twitter and other social media.


So basically it’s relatively meaningless and he’ll just get a fine at worst. However if he’s found in contempt now and violates the settlement again in the future it’ll be bad.

 

[Cobbler]

I'm just being paranoid after spending too much time in the 250$ - 380$ band for 3 years.
....
Time to enter the $400 to $600 band for 2019!

I'm changing from paranoid to schizo

 

[Buckminster]

Things we have learned in last 10 hrs:

1. Most importantly, like Elon and Karen, FactChecking doesn't sleep
2. Likelihood that we need to worry is 20% chance this goes anywhere. If it does, judge rules against Elon - 20%. Harsh ruling - 20%. Therefore 1% chance we should worry about losing Elon etc. and even that (although disastrous) doesn't stop Tesla printing cash.
3. Elon is not only saving us from climate change, he is intent on showing up the establishment as corrupt crooks. Pewdiepie's followers will be influencing every institution in the world in 5 years, from the bottom up.

 

[Pezpunk]

“
Rebecca Roiphe, a professor at New York Law School, said the commission’s action “is a fairly extreme step, but it is unsurprising, given that Musk seems so unconcerned not only about the agreement but about the policies behind the securities law.”

“This is not an innocuous tweet,” she added. “Insiders have to be careful about revealing misleading information to the public.”

Ms. Roiphe said the motion could set the stage for the commission to later seek Mr. Musk’s removal as chief executive if he further violated the agreement. The court could also decide to impose a fine, which is typical in civil cases such as this, or impose other restrictions on Mr. Musk’s use of Twitter and other social media.


So basically it’s relatively meaningless and he’ll just get a fine at worst. However if he’s found in contempt now and violates the settlement again in the future it’ll be bad.

Tesla had already set similar guidance on their call -- Elon specifically said "Maybe on the order of 350,000 to 500,000 Model 3s, something like that this year." All the tweet did was restate something the company had already made public. what on earth do you or the SEC see here that is in any way interesting? it's absurd and a total witch hunt.

 

[Fact Checking]

Rebecca Roiphe, a professor at New York Law School,
[...]
“Insiders have to be careful about revealing misleading information to the public.”

Her first mistake is that here she is assuming that the SEC's version of facts and narrative is correct, and that the SEC is acting in good faith, while both the SEC's self-serving narrative and motivation is strongly disputed: repeating already public information doesn't "reveal", i.e. it's not material information disclosed by an insider but speech not covered by the settlement.

"given that Musk seems so unconcerned not only about the agreement"

This is not a "given", it's a clear false narrative. The second tweet was written only because both the Tesla lawyer and Elon agreed that a clarification would be helpful. That's the exact opposite of "unconcerned".

"but [Elon is unconcerned] about the policies behind the securities law."

Elon's (correct) point is that the SEC is misapplying securities law, against the interests of Tesla investors and against the public interest.

That's the exact opposite of unconcerned as well.

She also seems to be missing the fact that securities laws are preempted by the First Amendment and that the SEC has lost several high profile First Amendment cases, in cases where the facts were much more in favor of the SEC enjoining speech.

But she's neither an expert in constitutional law nor in securities law, she's listed as:

"Rebecca Roiphe studies lawyers’ ethics and the history of the legal profession, focusing on the interaction between lawyers’ work and the rhetoric or ideals of professionalism."​

Her specialty appears to be opeds:

"Professor Roiphe’s opinion pieces have appeared in Slate, the New York Review of Books, Politico, U.S. News, and other popular press."​

So basically it’s relatively meaningless and he’ll just get a fine at worst.

I wouldn't be surprised to see Elon's legal team move strongly against the SEC here, not just to defend, but also to protect Tesla investors from future harmful interpretation of the settlement contract by the SEC.

 

[CorneliusXX]

Things we have learned in last 10 hrs:

1. Most importantly, like Elon and Karen, FactChecking doesn't sleep
2. Likelihood that we need to worry is 20% chance this goes anywhere. If it does, judge rules against Elon - 20%. Harsh ruling - 20%. Therefore 1% chance we should worry about losing Elon etc. and even that (although disastrous) doesn't stop Tesla printing cash.
3. Elon is not only saving us from climate change, he is intent on showing up the establishment as corrupt crooks. Pewdiepie's followers will be influencing every institution in the world in 5 years, from the bottom up.

RE pt no 2. At worst he would stop being CEO, I doubt that he could be stopped from being chief designer or chief hypeman.

 

[schonelucht]

I literally linked Tesla's policy (established as per the SEC agreement); did you not read it? It only requires approval for publication of material information. There was no intent to post material information in that post. Furthermore, it actually was within guidance as expressed in the investor call.

According to SEC

1) Intent is not a defense
2) Number of cars produced is clearly material, it's even explicitly mentioned as a material fact in Tesla's own policy and previous guidance in given in Q1 shareholder letter was in fact pre-approved
3) The waiver for pre-approval on information previously approved extends for only 2 days. The tweet was 20 days later.

 

[sundaymorning]

The SEC is going after Elon saying that his tweet was "inaccurate", because he corrected that tweet with a different number. Actually, if you look at Elon's two tweets on Feb 19, the first 500K tweet was talking about production in 2019 and in his second tweet, after clarifying the 500K production rate at end of 2019 he said deliveries at 400K.

It's entirely possible that, rounded to the nearest 100k, 2019 deliveries will be 400K and production and production anualized rate at year end for 2019 may be closer to 500K. Thus, the difference between 400K and 500K is not "inaccurate" because one is talking about deliveries and the other production. The SEC was sloppy here in claiming Elon was "inaccurate".

Well, now we know Elon is going to bust his tail to make the 500k happen. Is it too early to pop the Champaign?

 

[sundaymorning]

Her first mistake is that here she is assuming that the SEC's version of facts and narrative is correct, and that the SEC is acting in good faith, while both the SEC's self-serving narrative and motivation is strongly disputed: repeating already public information doesn't "reveal", i.e. it's not material information disclosed by an insider but speech not covered by the settlement.



This is not a "given", it's a clear false narrative. The second tweet was written only because both the Tesla lawyer and Elon agreed that a clarification would be helpful. That's the exact opposite of "unconcerned".



Elon's (correct) point is that the SEC is misapplying securities law, against the interests of Tesla investors and against the public interest.

That's the exact opposite of unconcerned as well.

She also seems to be missing the fact that securities laws are preempted by the First Amendment and that the SEC has lost several high profile First Amendment cases, in cases where the facts were much more in favor of the SEC enjoining speech.

But she's neither an expert in constitutional law nor in securities law, she's listed as:

"Rebecca Roiphe studies lawyers’ ethics and the history of the legal profession, focusing on the interaction between lawyers’ work and the rhetoric or ideals of professionalism."​

Her specialty appears to be opeds:

"Professor Roiphe’s opinion pieces have appeared in Slate, the New York Review of Books, Politico, U.S. News, and other popular press."​

I wouldn't be surprised to see Elon's legal team move strongly against the SEC here, not just to defend, but also to protect Tesla investors from future harmful interpretation of the settlement contract by the SEC.

In other words, she needs to be replaced by someone more competent.

 

[Fact Checking]

Number of cars produced is clearly material

This has been discussed already, information is only "material" (in the securities law sense) if it has not been disclosed yet.

The SEC apparently missed the previous disclosure, as they don't mention it in their filing.

I believe the SEC must install an independent review mechanism that prevents it from making erroneous, misguided, market moving filings that are hurting investors.

 

[CorneliusXX]

According to SEC

1) Intent is not a defense
2) Number of cars produced is clearly material, it's even explicitly mentioned as a material fact in Tesla's own policy and previous guidance in given in Q1 shareholder letter was in fact pre-approved
3) The waiver for pre-approval on information previously approved extends for only 2 days. The tweet was 20 days later.

So it comes down to whether the court believes the first two (IMHO rather dubious) statements.

Stating that intent is not relevant in a contempt case sounds ludicrous.

Is restating a recently stated number material? arguably not.

If 2 is false then 3 is irrelevant.

 

[Matias]

What if Tesla makes 500,000 cars this year? Rumor is they are building 7000 Model 3’s per week now, plus about 2000 SX is 450,000 rate already.
On the other hand, he’s not reviewing company tweets with anyone. He just needs to text the new CFO and get a yes, no edit, ie 500,000 runnrate, not 500,000. Ok, thanks Zach.

"
Written Communications that contain, or reasonably could contain, information material to

Tesla or its stockholders must,

prior to posting or other publication, be submitted to Tesla’s

General Counsel and Disclosure Counsel (or in the event of the

General Counsel’s unavailability,

Tesla’s Chief Financial Officer and Disclosure Counsel) for preapproval."

So it does not matter, whether communication is true or false. It must be preapproved

 

[schonelucht]

This has been discussed already, information is only "material" (in the securities law sense) if it has not been disclosed yet.

Reconfirming guidance is material. The time at which you make a projection is material. In the extreme : there is a difference between saying "we will release FSD tomorrow" versus "we will release it in 5 years". Hopefully Elon can wiggle its way out of this one, but it does not look good. Many were also convinced that the $420 would not be a problem since he had in fact spoken with funders. Yet here we are. The rules are applied very strictly to Tesla and Elon Musk. Sure, it's not fair and counterproductive. But it is what it is.

 

[CuriousSunbird]

So your view is that negligent or reckless violation of a court order cannot constitute contempt? Wilfulness iis required?

Thar has not hitherto been my understanding of the position of the federal courts, but I would certainly be interested to read any authority or source that you could cite.

 

[kyzhk]

This has been discussed already, information is only "material" (in the securities law sense) if it has not been disclosed yet.

The SEC apparently missed the previous disclosure, as they don't mention it in their filing.

I believe the SEC must install an independent review mechanism that prevents it from making erroneous, misguided, market moving filings that are hurting investors.

Very seriously speaking, if the court somehow determines that SEC's filings are willful negligent due to failure to account for publicly accessible information (Q1 earnings) which substantially moved market (false "material" statement about EM violating agreement) do we have a case suing SEC for financial damage caused?

Also, did shorts actually got money from the settlement fine from last time? How did they prove damage?

 

[kyzhk]

"
Written Communications that contain, or reasonably could contain, information material to

Tesla or its stockholders must,

prior to posting or other publication, be submitted to Tesla’s

General Counsel and Disclosure Counsel (or in the event of the

General Counsel’s unavailability,

Tesla’s Chief Financial Officer and Disclosure Counsel) for preapproval."

So it does not matter, whether communication is true or false. It must be preapproved

I think the keyword is "material". If Tesla is fighting this the discussion will revolve around what "material" means and how we can objectively measure it.

 

[Matias]

I think the keyword is "material". If Tesla is fighting this the discussion will revolve around what "material" means and how we can objectively measure it.

Yes.

 

[W84M3]

If it was so material, why didn't the SP move AH and only 10k shares traded during the whole AH?

That's right, because it wasn't material to Tesla and its stockholders.


Secondly, clarification came before market open.

 

[Matias]

"Written Communications that contain, or reasonably could contain, information material to Tesla or its stockholders must, prior to posting or other publication, be submitted to Tesla’s General Counsel and Disclosure Counsel" - Obviously Elon will argue that there was no intent whatsoever to write a post that would contain material information to Tesla or its stockholders.

Intent does not matter. "must, prior to posting or other publication, be submitted..".