SpaceX owner and Tesla CEO Elon Musk at the E3 gaming convention in Los Angeles, California, June 13, 2019.
Mike Blake | Reuters
Tesla CEO Elon Musk lost one appeal to unwind parts of a consent decree he and the automaker struck with the Securities and Exchange Commission to settle civil securities fraud allegations in 2018.
The ruling, issued Monday by a federal appeals court, upholds an earlier decision by the U.S. District Court for the Southern District of New York, which issued the initial denial.
Musk has been in dispute with the SEC for years over the consent decree, which was revised in 2019 after the SEC charged Musk with “false and misleading” statements in his “funding secured” tweets in August 2018. Tesla’s CEO said he had found a buyer to take the automaker private for $420 a share, a claim that a federal judge later was found to be false.
The agreement required “prior approval” for tweets by Musk that contained informational material for Tesla, and that extended to “certain senior executives,” according to the ruling.
A letter in February from Musk attorney Alex Spiro said the terms of the consent decree amounted to “constitutional” infringement on his freedom of speech.
But the U.S. Court of Appeals for the Second Circuit dismissed those claims, writing that the court saw “no evidence to support Musk’s claim that the SEC has used the consent decree to conduct bad faith, harassing investigations of his protected speech.”
The court noted that the SEC had opened “only three inquiries” into his tweets since 2018: over his “funding secured” tweet, a tweet that falsely displayed Tesla’s annual production numbers, and a Twitter poll in which Musk suggested selling 10% of his Tesla shares. according to the court report.
Far from the investigations being in “bad faith,” the court wrote that “each tweet likely violated the terms of the consent decree.”
Musk’s lawyers are also making a Rule 60(b) argument, which allows a party to reopen its case if the law or situation has changed significantly. Musk’s legal team argued that the SEC’s methods of enforcement made compliance “significantly more onerous.”
But the court dismissed that argument as well, noting that Musk was only required to consult with Tesla’s general counsel or an in-house securities attorney.
Musk’s Twitter activity has been the subject of both SEC and shareholder attention. Musk was found “not liable” in a securities fraud trial in February for his “fund-backed” tweets. Musk has also fended off one trial involving his public boost of the dogecoin cryptocurrency.
The court added that if Musk was concerned about SEC oversight of his “right to tweet without even limited internal oversight,” he could have defended himself against the SEC’s charges or negotiated a different settlement. “But he chose not to,” the court emphasized.
“Having made that choice,” the court concluded, Musk’s team could not argue “to reopen a final judgment simply because he has now changed his mind.”
“We will seek further review and continue to bring attention to the important issue of government restrictions on speech,” Musk’s attorney Spiro said in a statement to CNBC.
Read the judgment below: