Okay, for what it's worth, I sent the following email to
[email protected] and
[email protected] (not sure if this is valid). I also sent it to "fill out" forms on the contact investor relations page and contact the board of directors page. Any other Musk/Tesla emails I could send it to? (Ideally if someone can point all this out to him on twitter would be best -- I don't have twitter account.)
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Subject: A Simple Defense of Recent SEC Contempt Filing?
Hi, I'm just a concerned investor that wanted to point out that Tesla/Musk seems to have a rather simple defense to the recent SEC contempt filing. I'm not a legal expert, but this is the way I understand what occurred:
(Summary: the SEC erred because they did not take into account what was said in the CC call, nor did they take into account the difference between "production" numbers vs "delivery" numbers.)
First:
In the Q4 Investor Letter and 10K, TOTAL deliveries were mentioned at 360-400k. In the CC, deliveries of M3 alone were estimated by Musk at 350-500k, depending on China and other factors (as analysts questioned him on the difference between his estimate and the Q4 letter). The midpoint of the CC M3 estimate is 425k. After adding in ~75k conservatively for S and X, you get 500k deliveries. So, there is some variability there as far as total deliveries go, anywhere from 360 to 600k.
Second:
In the first tweet in question, Musk was not talking about deliveries, but production ("make") and it was only an approx number ("around"):
"Tesla made 0 cars in 2011, but will **make around** 500k in 2019"
Production is often higher than deliveries, especially in 2019 with the more complex logistics of international deliveries (as Tesla previously pointed out). Even regardless of this assumption, if you put the first tweet together with the investor letter and CC call, you get:
*** In 2019, Tesla will make approx 500k total cars and deliver anywhere from 360 to 600k cars. So there is nothing inaccurate nor conflicting about the first tweet vs what was conveyed in the investor letter and conference call, as the SEC alleges. ***
Analysts and the public understand that there could certainly be a large variability (of say approx +-100k) in the production and delivery forecast for 2019, given all the many variables (China, tariffs, timeline of low-cost M3, etc.). In the investor letter and second (clarifying) tweet, Tesla/Musk was being more conservative, whereas in the CC call and first tweet they were being less conservative, more ambitious.
Finally, since (given the above) nothing new was conveyed in the first tweet, that tweet hence did not contain any material info -- it was all prior public knowledge. And so it did not require further pre-approval from Tesla legal counsel.
In summary, I think the SEC erred because they did not take into account what was said in the CC call, nor did they take into account the difference between "production" numbers vs "delivery" numbers.
Thank you for your time.