Tesla's Musk May Have Tweeted Himself Into an SEC Fraud Probe

Tesla (TSLA) CEO Elon Musk may have tweeted himself into a securities fraud investigation.

The Securities and Exchange Commission is reported by the Wall Street Journal to be making inquiries about Musk's tweet yesterday that he was looking into taking the electric car company private at a price of $420 a share, and that funding for the transaction was "secured."

The SEC wants to know whether the tweet was truthful and why the disclosure was made on Twitter, the newspaper reported.

SEC public affairs spokesman Chris Carofine said the agency is declining to comment.

Musk's tweet sent Tesla shares up as much as 11% yesterday after trading resumed following a short halt on the Nasdaq Stock Exchange. Today the shares gave up part of that gain, falling $9.23, or 2.4%, to $370.34.

It's not clear what Musk intended to accomplish with his tweet, including whether there is actually a plan for Tesla to be sold. The company made a statement this morning saying that, last week, Musk had initiated a meeting with some board members to discuss the prospect of taking the company private.

If Musk's tweet isn't true, and the stock comes down, those who lost money could very well sue. As it stands, the price has come up since the tweet, and short-sellers are unhappy.

The SEC will be looking to see what disclosures Tesla makes to determine whether there are issues of securities fraud, according to Columbia Law School professor John Coffee.

"If the stock price were to fall either because there's a corrective disclosure or because people figure that no one has been approached by him {Musk} for financing, then you're able to satisfy a lot of causation," Coffee said. "The short-sellers will say those statements drove the price up. That's all they're going to have to show."

It's unlikely financing could have already been secured for what would be roughly a $50 billion deal, Coffee said.

"'Funding secured' is an objective factual statement that looks implausible given the great difficulty in lining up debt investors willing to fund 70 percent of a $70 billion or more record transaction," he said.

The SEC will also search for evidence of Musk's motives, as well as to show a correlation between the tweet and the stock movements, said David Lopez, Capital Markets Partner at law firm Cleary Gottlieb.

"Let's imagine the SEC decided to bring action for stock price manipulation," Lopez said. "The SEC would subpoena emails and other records. If there's information showing that he wanted to increase the stock price or wanted to teach a lesson to the short sellers, then that would be evidence that there was some manipulative intent. If there's no such evidence, it's going to be difficult for the SEC to bring a manipulation case."

Still, even if the SEC doesn't turn up documentary evidence of Musk's motive, the effects of the tweet may be sufficient to bring an action, Lopez said.

"The SEC, in looking at manipulation, would normally want to prove the intent of the person taking the actions, but there is case law indicating that manipulation can be proved if the person took action that has the effect of changing the trading value of the stock," Lopez said. "And pretty clearly Musk did." 

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