Tesla Chairman and CEO Elon Musk committed securities fraud when he tweeted about taking the company private without actually securing funding as he claimed he had, the Securities and Exchange Commission claimed Thursday.
Musk, the eccentric entrepreneur who’s made waves with Tesla by building electric cars, solar roof panels and home batteries, took to Twitter back in August and claimed that he was “considering taking Tesla private at $420,” adding that he had “funding secured.”
But according to the SEC, Musk did not have “funding secured” and committed securities fraud by claiming that he did in his tweets that were sent out to his 22 million followers.
Am considering taking Tesla private at $420. Funding secured.
— Elon Musk (@elonmusk) August 7, 2018
“Musk’s statements, disseminated via Twitter, falsely indicated that, should he so choose, it was virtually certain that he could take Tesla private at a purchase price that reflected a substantial premium over Tesla stock’s then-current share price, that funding for this multi-billion dollar transaction had been secured, and that the only contingency was a shareholder vote,” the SEC said in its complaint against Musk. “In truth and in fact, Musk had not even discussed, much less confirmed, key deal terms, including price, with any potential funding source.”
As the SEC claims, Musk subsequently tweeted out several supporting statements that he knew to be false or misleading, all which had a significant impact on Tesla’s stock.
“From the time of Musk’s first tweet that day until the close of trading on August 7, Tesla’s stock price increased by more than 6% on significantly increased volume and closed up 10.98% from the previous day,” the SEC stated. “Musk’s false and misleading public statements and omissions caused significant confusion and disruption in the market for Tesla’s stock and resulting harm to investors.”
According to the SEC, Musk did have preliminary discussions with a potential investor about taking Tesla private but the discussions never passed those early stages.
Despite that, Musk sent an email with the subject, “Offer to Take Tesla Private at $420,” to Tesla’s board of directors, chief financial officer, and general counsel on Aug. 2, 2018.
In that email, Musk said that one of the reasons he wanted to take the company private was because as a public company, Tesla is subject to “constant defamatory attacks by the short-selling community, resulting in great harm to our valuable brand.” As the SEC notes, Musk has been in a long-standing battle with “short-sellers,” investors who believe a stock is going to fall and hope to make a profit off of that fall. Musk has claimed that short-sellers publicize negative information about the company in an effort to make the company’s stock fall.
According to the SEC, Musk knew that the proposed share price of $420 was a substantial premium, but chose it for various (and frankly ridiculous) reasons.
“According to Musk, he calculated the $420 price per share based on a 20% premium over that day’s closing share price because he thought 20% was a ‘standard premium’ in going-private transactions,” the SEC claims in its complaint.
“This calculation resulted in a price of $419, and Musk stated that he rounded the price up to $420 because he had recently learned about the number’s significance in marijuana culture and thought his girlfriend ‘would find it funny, which admittedly is not a great reason to pick a price,’” the SEC added.
According to the SEC, “Musk did not discuss a $420 price per share with any potential funding source for a Tesla going-private transaction prior to sending his email to Tesla’s board.”
Nonetheless, Musk took to Twitter and tweeted that funding was “secured” at $420 per share.
“Musk did not consult with Tesla’s Board of Directors, any other Tesla employees, or any outside advisors about these tweets before publishing them,” the SEC said.
In its complaint, the SEC claims that Musk’s tweets “caused market chaos” and harmed Tesla’s investors.
“Corporate officers hold positions of trust in our markets and have important responsibilities to shareholders,” said Steven Peikin, co-director of the SEC’s Enforcement Division. “An officer’s celebrity status or reputation as a technological innovator does not give license to take those responsibilities lightly.”
The SEC alleges that Musk violated antifraud provisions of the federal securities laws with his tweets, and seeks a permanent injunction, disgorgement and civil penalties.
The SEC is also wants Musk barred from serving as an officer or director of a public company.
To read the SEC’s full complaint against Musk, click here.