SEC subpoenas Tesla seeking information linked to Musk settlement

US regulator’s probe revives scrutiny of Elon Musk tweet claiming he had secured funding to potentially take the EV maker private.

US regulator’s probe revives scrutiny of Elon Musk tweet claiming he had secured funding to potentially take the EV maker private. Picture: Britta Pedersen/AFP

The Securities and Exchange Commission has subpoenaed Tesla for information about compliance with a court-ordered settlement requiring certain of Elon Musk’s tweets be preapproved.

Tesla said in a regulatory filing made public Monday that the SEC had sought information on “governance processes around compliance” with a settlement related to Mr Musk’s 2018 tweet claiming to have secured funding to potentially take the electric-vehicle maker private.

Mr Musk paid $US20m ($A28m) to settle an SEC enforcement action alleging that he committed fraud by tweeting about a potential buyout. The SEC also insisted on an unusual ongoing requirement: a Tesla lawyer would review his social media posts and certain other public statements. He also agreed to relinquish his role as company chairman, while remaining chief executive.

Tesla said in the securities filing that the SEC issued the subpoena – typically a sign of a formal investigation – on November 16. Tesla didn’t respond to a request for comment. The SEC declined to comment.

Tesla stock closed down 1.73 per cent on Monday.

Disclosure of the subpoena revives scrutiny of Mr Musk’s use of social media, which the SEC has tried for years to rein in.

The agency told Tesla in 2020 that the chief executive’s use of Twitter had twice violated the preapproval policy, The Wall Street Journal reported last year. Of concern were tweets including a May 1, 2020 post in which Mr Musk said, “Tesla’s stock price is too high imo,” using an abbreviation for “in my opinion.” Tesla’s shares fell after that tweet.

Tesla disagreed with the SEC, telling the agency that Mr Musk’s messages weren’t within the scope of the agreement. The SEC never went back to court to ask a judge to intervene.

The SEC’s ongoing friction with Mr Musk shows the risk “of being overly creative” with an enforcement settlement, said Marc Fagel, a former head of the agency’s San Francisco office. The agency could have sought Mr Musk’s removal as CEO when it resolved the civil fraud case, but didn’t pursue that punishment.

“The SEC chose some novel middle ground with a monitoring requirement, and I think what is going on shows the hazard in that,” Mr Fagel said.

The SEC has a few options if it believes Mr Musk or Tesla violated the earlier settlement. Regulators could ask a federal judge to tear up the settlement, and they could renew their civil fraud lawsuit against him and the company.

Alternatively, the SEC could focus a new investigation on whether Tesla didn’t oversee Mr Musk’s tweets as it told shareholders it would, Mr Fagel said.

Mr Musk has sometimes been combative with regulators and the SEC in particular. After the SEC sought information about whether Tesla was monitoring his public messages, the Tesla CEO in July 2020 tweeted an apparent reference to a sex act: “SEC, three letter acronym, middle word is Elon’s.” And Tesla last year asked law firm Cooley to fire an associate it had hired from the SEC or else lose Tesla’s business, the Journal reported last month. Cooley declined to do so.

Tesla also said Monday that a California agency tasked with protecting civil rights told the company last month that, after an investigation into allegations of race discrimination and harassment at Tesla, it believes it has the grounds to file a lawsuit against the electric-vehicle maker. The California Department of Fair Employment and Housing declined to comment. The agency says on its website that, before filing a lawsuit, it typically requires parties to go to mediation.

A federal jury found last year that Tesla had subjected a Black former employee to a racially hostile work environment, awarding him roughly $US137m in damages. Tesla has said that it doesn’t believe the verdict is justified and has asked for a new trial or for the damages to be reduced.

The Wall Street Journal