We are all aware of those claims by the SEC, but proving them would have been another story. In fact,
former SEC Senior Counsel Thomas Gorman believes the SEC would have had a difficult time proving their claims as they themselves have noted Musk met 3-4 times with the Saudis on this. And the SEC also filed a civil case, so in that sense it was no different in terms of the need to prove bad intent.
So while there would have been a discussion on whether Elon could have reasonably believed funding was secured, it is far from a foregone conclusion he would have lost the case. In fact, quite the opposite as per Mr. Gorman.
As to the shorts` argument, i think they have an even tougher case for a couple of reasons.
- They claim financial damages, but this may only apply to those who closed all their positions as the share price ran up and lost money. Those who stayed in, made money as the SP plummeted the next few trading days as Musk did not disclose financing details, so overall they may even have a financial gain due to Musk` actions. (I saw an "expert" make this claim but can`t recall who and when, but does make some sense.)
- Prefacing the entire saga with "I am considering" and the fact they still would have needed investors` approval (which Musk admitted) means the deal could still have fallen through as per Musk`s own admission in that announcement and subsequent clarifications later that day. So trading on this information was still not a sure bet, but everyone who did so took that chance. Had Musk gotten shareholder approval only to realize that oral agreement with the PIF did not hold up, would have meant the deal failed on "funding secured". It did not. Musk was "considering" and changed his mind, pulled the proposal. Whether the money was there or not is immaterial as the deal was always subject to "considering" and in the end he decided against it.