Here's what will happen if they give the Ludicrous free:
1) There will immediately be doubts that the option is worth $10000. If Tesla can offer it for free, people will speculate that it's not really worth that much money (even now with the $5000 there is already similar speculation).
That may be true. But people --KNOW-- the Premium Interior isn't worth $3500 (or whatever Tesla is charging for it these days) and they buy it anyway. (I did.) There will always be people who want the absolute best model--the top of the line--and they will pay for it.
2) It can be taken as admission of fault and be the actual trigger point for a false advertising lawsuit. Keep in mind, if Tesla is actually at fault for false advertising (I don't think they are, but some people certainly feel they are), offering Ludicrous for free does not let them escape from that. The actual remedy for a false advertising suit would include buyback of all the cars affected, simply giving Ludicrous for free would not be the end remedy.
Right now the $5000 discount can be interpreted to just be a discount for people who missed out.
This is without question an issue. wk057 raised this one as well. I certainly recognize it as a thorny situation. But here's my take on it.
Frankly, I think if a suit happens, Tesla loses. There really is already enough evidence stacked up against them that they really can't win. So while giving away the update for free --could-- be seen as an admission of guilt, I don't think that really matters a whole heck of a lot. One reason for that is that the update essentially corrects the damages from the false advertising. Once all the owners have the update, what damages are there? Is there enough there for some law firm to spend the time and effort to go after? Again, I have no experience in this area. I'm just using common sense and business sense. But it would seem a judge could easily look at the facts and agree that Tesla misled customers, but has since made them whole. Tesla would argue they had done their best, come up short, so then had corrected the situation as best they could, and that no one who was misled has been damaged. Any punitive damages on top of that, based on such a massive gesture of good will by Tesla, would likely be small. I think there's a pretty good chance that knowing the likely outcome, no lawfirm would even bother.
And on top of this, by giving away the update Tesla generates a massive amount of free advertising and good will. If the false advertising suit comes anyway, Tesla just keeps pointing to the grand gesture, saying, "We thought we could do this, and when we couldn't, we made it right." The public will accept that, and more good press may even be generated.
On the other hand, if Tesla continues with their current approach, and a class action suit eventually happens, even if they somehow manage to defend it, which I don't see happening, the bad press and damaged image will still be very costly. And if they were to lose such a suit, they'd be far, far worse off than if they just gave away the upgrades now.
Unless Tesla really believes there just won't be a suit, I don't see how they can make any decision other than to give the Ludicrous upgrade away to those affected by the misleading numbers on the website and to those who ordered when the note about "improved performance at high speed" was on the website.
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I don't think purchasers of ludicrous would have a case, I think those who bought the P85D advertised with HP it never had might.
The thousands of Ludicrous upgrade buyers I've been referring to would be the ones that bought the P85D advertised with HP it never had.
I'm saying this group (along with the group that purchased when the "high speed performance improvement" note was on the website) have a strong case. Many may not have any interest in pursuing anything, which is fine. But once they have paid for the upgrade, and a lawfirm realizes that they are potentially part of a damaged class, even if the majority of the owners don't want to take action, the lawfirm only needs to find a few who do to get a class qualified, right?
