Tesla CEO Elon Musk’s Tweets Might Still Be a Problem for the SEC

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Updated Aug. 18, 2021 7:59 americium ET / Original Aug. 18, 2021 5:30 americium ET

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Tesla CEO Elon Musk gestures astatine the Gigafactory works successful Germany connected Aug. 13.

Patrick Pleul / POOL/AFP via Getty Images

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Freshly appointed Securities and Exchange Commissioner Gary Gensler has a problem: Tesla CEO Elon Musk and his tweets.

The SEC reached an statement with Tesla (ticker: TSLA) successful September 2018 that was intended to found much oversight implicit Chief Executive Elon Musk’s Twitter (TWTR) posts, immoderate of which person moved the company’s stock. The agreement, which was reached aft Musk tweeted astir taking Tesla backstage with “funding secured,” has seldom been enforced, leaving Gensler with a determination astir what to bash next.

It wasn’t that the SEC didn’t effort to clasp Tesla accountable for Musk’s tweets. Over the span of much than a year, San Francisco Assistant Regional Director Steven Buchholz sent a bid of letters to Tesla’s lawyers raising concerns astir tweets Musk had sent since the agreement, according to documents obtained done a Freedom of Information Act request.

The SEC and Tesla didn’t respond to a petition for comment.

The documents showed that Buchholz expressed interest implicit a fig of tweets, and said that it was the SEC’s presumption that Tesla had failed to comply with a 2018 agreement, 1 that outlined a bid of board-level procedures that were enactment successful spot to o.k. Musk’s tweets.

According to the correspondence, Tesla acknowledged that 1 of Musk’s tweets—a July 2019 tweet astir star extortion capacity—was ne'er cleared by the committee mechanism. In the correspondence, Buchholz said Tesla’s lawyers argued that it wasn’t necessary.

It’s hard to marque the lawsuit the July 29 tweet moved the stock. Shares declined 3.2% successful the 5 days pursuing the tweet, portion the S&P 500 dropped 5.5% implicit the aforesaid span. The star extortion concern is inactive comparatively tiny for Tesla. In the 2nd 4th of 2021, automotive income were $10.2 billion, portion vigor procreation and retention income came successful astatine $801 million.

Buchholz took contented with different Musk tweets that appeared to interruption the agreement.

Musk tweeted Tesla would marque 500,000 cars successful 2019 arsenic portion of a connection celebrating what Tesla had accomplished arsenic a start-up car company. He corrected that tweet the aforesaid time indicating the accumulation complaint astatine the extremity of 2019 would annualize to astir 500,000 vehicles. Tesla delivered astir 368,000 vehicles in 2019. The institution delivered astir 500,000 in 2020. The numbers successful the tweet ended up approximating reality.

Tesla accumulation has continued to grow and the institution has delivered astir 386,000 vehicles successful the archetypal fractional of 2021.

Tesla banal didn’t bash each that overmuch successful effect to that tweet either. Shares dropped astir 3% successful the 5 trading days aft the tweet. The S&P 500 roseate 0.7% implicit the aforesaid span. Tesla banal gained astir 26% successful 2019.

There person been tweets that moved Tesla stock. A 2020 tweet dealt straight with the banal price: Musk tweeted it was “too precocious imo.” IMO is abbreviated for successful my opinion. The banal dropped 10% the time of the tweet, but recovered successful 5 trading days. The tweet was sent erstwhile Tesla was trading astatine astir $156 a share. It closed 2020 astatine $705.67, gaining 743% for the year.

Tesla lawyers called the tweet an amorphous idiosyncratic opinion, according to 1 of the documents that was released to Barron’s via the FOIA. The SEC disagreed.

Now, Chairman Gensler, who has talked astir the increasing request for much regularisation successful the cryptocurrency market, has to determine what to bash with the agreement. Musk’s Twitter relationship is dissimilar that of different nationalist institution CEOs. He has go a must-follow for Wall Street analysts and investors. He tweets astir Tesla products, production, and technology. He tweets astir upcoming events, including the company’s artificial quality event, which is scheduled for Aug. 19. Musk’s tweets person go an important root of information.

It was his predominant usage of Twitter that landed him successful occupation with the SEC successful the archetypal spot and resulted successful the 2018 settlement. The statement included $40 cardinal successful fines—half by Musk and fractional by the company. Musk was besides barred from the committee president relation for 3 years. According to a property merchandise from the time, “Musk and Tesla person agreed to settee the charges against them without admitting oregon denying the SEC’s allegations.”

Musk’s Twitter relationship mightiness turn successful importance. He said connected the company’s second-quarter telephone that helium was improbable to proceed participating successful quarterly net league calls. The Street wasn’t each that surprised. Morgan Stanley expert Adam Jonas, a Tesla bull, called that a bully thing. Still, it’s hard to ideate Musk remaining silent.

That’s Gensler’s occupation now.

Write to Max A. Cherney astatine max.cherney@barrons.com and Al Root astatine allen.root@dowjones.com

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