Hi folks, I'm new here. I've been following in the shadows for a while, but never posted. But I actively post on Seeking Alpha in a (perhaps vain) effort to fight Tesla FUD. After the recent SEC news, I decided to finally become a member and contribute a "small" post. Nothing really original, but basically a summary of my understanding based on what I've read from others here and elsewhere. Also, I'm not a legal expert.
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.
Furthermore, 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.
