That would be a mixed blessing for shareholders: if it's thrown out without prejudice the SEC could re-file the suit anytime. If it's thrown out with prejudice the SEC would appeal it almost certainly - as it would probably set a precedent that severely curtails their legal toolkit. That would draw out the uncertainty for a long time.
It's also pretty hard for the judge to do anything in this case where the suit is so super young that there are almost no established facts she could rely on to make a substantial ruling in either direction.
The most likely outcome is that she ratifies the settlement tomorrow-ish.
The SEC can be seen as a cop arresting the victim rather than the perpetrators of a mugging on a particularly dark and dirty street.
Won’t the judge besmirch the reputation of the judiciary if she just rubberstamps the railroading of Elon Musk by the SEC?
The SEC is offering the victim of a mugging by powerful entrenched interests the choice of having their life’s work destroyed in via immediate severe punishment or in a legal death of a thousand cuts in the courtroom over the years to come.
Could she offer the SEC a similar choice? Come back with the lightest possible slap on the wrist for Musk or the SEC will face a reputational death by a thousand via interminable requests for justification of the settlement that will together shed a great deal of public light on them and others.
She could conclude that the SEC’s part of the first and any following responses to her request(s) for justification was/were sufficiently unclear as to be non-responsive.
She could make more requests for justification with specific questions for the SEC, such as:
1) Does the SEC have standing, since it appears to be acting against its mandate? Isn’t it supposed to protect investors (aka shareholders) and provide stability? Shouldn’t its focus be on the muggers, that is on the speculators, shortsellers and their co-conspiritors who are introducing unfairness and instability in to the market?
2) The shareholders *just* voted to keep Elon Musk as the leader of Tesla. Why is the SEC seeking to undo that when the shareholders have so clearly demonstrated they want? Isn’t what the SEC seeking actually in the best interest of “anti-investors”? Why would removing Musk as Chairman constitute any kind of “remedy” for shareholders?
3) Why is the SEC justified in wanting tighter control of Musk and Tesla through recourse to contempt rulings when the SEC appears in (2) above to be acting against the shareholders and market with the punishment it seeks to meet out?
4) Why oh why on all the other parts of the settlement too? Why so much money? Should a person get a $200,000 traffic ticket rather than a $200 ticket simply because they have an expensive car?
…) and so on and on and on and on…
I’m not a lawyer, so perhaps nothing like this is possible. If it is possible, it might yield a settlement that is effectively a dismissal. It would also shed some light on the peculiar behavior of the SEC and perhaps also on the shorts, etc.
It would be sad if the judge cannot find a way for the judiciary to avoid being party to a great injustice that would make history.
[edits for clarity]