Monday, October 8, 2018

Poking the SEC Bear

BLPB reader Tom N. sent me a link to this article last week by email.  The article covers Elon Musk's taunting of the U.S Securities and Exchange Commission (SEC) in a post on Twitter.  The post followed on the SEC's settlement with Musk and Tesla, Inc. of a legal action relating to a prior Twitter post. The title of Tom N.'s message?  "Musk Pokes the Bear in the Eye."  Exactly what I was thinking (and I told him so) when I had read the same article earlier that day!  This post is dedicated to Tom N. (and the rest of you who have been following the Musk affair).

Last week, I wrote about scienter issues in the securities fraud allegations against Elon Musk, following on Ann Lipton's earlier post on materiality in the same context.  This week, I want to focus on state corporate law--specifically, fiduciary duty law.  The idea for this post arises from a quotation in the article Tom N. and I read last week.  The quotation relates to an order from the judge in the SEC's action against Musk and Tesla, Alison Nathan, that the parties jointly explain and justify the fairness and reasonableness of their settlement and why the settlement would not hurt the public interest.  Friend and Michigan Law colleague Adam Pritchard offered (as quoted in the article): “She may want to know why Tesla is paying a fine because the CEO doesn’t know when to shut up.”  Yes, Adam.  I agree.

What about that?  According to the article, the SEC settlement with Musk and Tesla "prevents Musk from denying wrongdoing or suggesting that the regulator’s allegations were untrue."  The taunting tweet does not exactly deny wrongdoing or suggest that the SEC's allegations against him were untrue.  Yet, it comes close by mocking the SEC's enforcement activities against Musk and Tesla.  Musk's action in tweeting negatively about the SEC is seemingly--in the eyes of a reasonable observer--an intentional action that may have the propensity to damage Tesla.  

At the very least, the tweet appears to be contrary to the best interests of the firm.  But is it a manifestation of bad faith that constitutes a breach of the duty of loyalty under Delaware law?  As most of us well know, 

[b]ad faith has been defined as authorizing a transaction "for some purpose other than a genuine attempt to advance corporate welfare or [when the transaction] is known to constitute a violation of applicable positive law." In other words, an action taken with the intent to harm the corporation is a disloyal act in bad faith. . . . [B]ad faith (or lack of good faith) is when a director acts in a manner "unrelated to a pursuit of the corporation's best interests." It makes no difference the reason why the director intentionally fails to pursue the best interests of the corporation.

Bad faith can be the result of "any emotion [that] may cause a director to [intentionally] place his own interests, preferences or appetites before the welfare of the corporation," including greed, "hatred, lust, envy, revenge, . . . shame or pride."

In Re Walt Disney Co. Derivative Litigation, 907 A.2d 693, 753-54 (Del. Ch. 2005).  Of course, Musk was not authorizing a transaction--or even clearly acting for or on behalf of Tesla--in making his taunting tweet.  But he is identified strongly with Tesla, and his tweet was intentional and inconsistent with the best interests of the firm.  Did he intend to harm Tesla in posting his tweet?  Perhaps not.  Did he act in a manner "unrelated to a pursuit of the corporation's best interests?"  Perhaps.  The tweet is certainly an imprudent (and likely grossly negligent or reckless) action that appears to result from Musk intentionally placing his own hatred or revenge ahead of the interests of Tesla.  

"To act in good faith, a director must act at all times with an honesty of purpose and in the best interests and welfare of the corporation."  Id. at 755.  Yet, it is unclear how far that goes in a Twitter-happy world in which the personal blends into the professional.  Musk was (in all likelihood) not taking action as a director or officer of Tesla when he tweeted his taunt.  Yet, he was undoubtedly cognizant that he occupied those roles and that his actions likely had an effect on the firm.  Should his fiduciary duties extend to this type of conduct?

And what about the Tesla board's duty to monitor? Does it extend to monitoring Musk's personal tweeting?  E.g., the argument made in the Chancery Court's opinion in Beam Ex Rel. Martha Stewart Living Omnimedia, Inc. v. Stewart.  Even of not mandated by fiduciary duty law, the SEC clearly wants the board to have that monitoring responsibility.  The settlement with the SEC reportedly provides for "Tesla’s board to implement procedures for reviewing Musk’s communications with investors, which include tweets."  More for us all to think about when we think about Elon Musk and Tesla . . . .  It's always best not to poke the bear.

https://lawprofessors.typepad.com/business_law/2018/10/poking-the-sec-bear.html

Ann Lipton, Business Associations, Corporate Governance, Current Affairs, Joan Heminway, Securities Regulation | Permalink

Comments

One must marvel that Musk must be the indispensable man. Giving cause by the face of Tesla to further inflame a federal regulatory body has to fall into the calculus of potential share value and the exposure of the company to shareholder derivative actions. Perhaps a clarion call for boards to start imposing specific codes of conduct for board members, CEOs, CFOs and CIOs? Or, lets just take another recorded "drag on a doobie" for the public?

Posted by: Tom N. | Oct 9, 2018 1:52:48 PM

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