Not saying the SEC is saying the second tweet didn't get pre-approved. I guess how you can look at it as this. The first tweet could be material if Elon didn't clarify with a second tweet. That is what the SEC believe what Elon or his board thought, therefore dinging his first tweet. If Elon made no clarification, the SEC will have a hard time proving the first tweet as a violation.
I don't think that's the SEC's opinion.
1)
Firstly, they are laying out their central position pretty clearly on page 1 of their motion:
I.e. the SEC finds the first tweet in violation of the settlement already, and they insist that it should have been pre-approved. Not qualified by the existence of the second tweet.
2)
Furthermore the SEC insists on characterizing the second tweet as a "correction":
A few hours later, at 11:41 PM ET, Musk published another tweet correcting his 7:15 tweet: “Meant to say annualized production rate at end of 2019 probably around 500k, ie 10k cars/week. Deliveries for year still estimated to be about 400k” (the “11:41 tweet”).
Elon and Tesla insist that the second tweet was a "clarification", out of abundance of caution - there was nothing to correct.
Note that whether there's anything to 'correct' in the first tweet is a question that can be proven independently of the existence of the second tweet. In fact review of readily available past Tesla guidance and communications here on TMC confirms Elon's and Tesla's view.
The SEC does use the "Meant to say" language of the second tweet to argue that it was a correction to the first tweet - but there's several meanings of that idiom, only one of which implies a correction:
- the other is to imply a clarification of potentially ambiguous information,
- another possible interpretation is that Elon's lawyer reviewing the first tweet wanted the second tweet to override the whole first tweet, which the "Meant to say" language certainly achieves.
Note that it's also possible that Elon
genuinely made a mistake in the first tweet - but that it turned out to be immaterial in all possible interpretations of a reasonable investor. We don't know at this point, but I expect the judge to ask Elon this question in person.
3)
Finally, and rather importantly, the SEC misconstrues the flow of tweets and entirely ignores the
true first tweet which was sent minutes before the "around 500k" tweet, to which Elon's other tweets were only replies:
The SEC regurgitates the August $420 events in great detail over several pages, but somehow doesn't find the space to mention the true first "4000 Tesla cars" tweet where Elon started proudly celebrating Tesla achievements
even once...
(I believe this omission of key factual context might rise to the level of malicious prosecution - obviously difficult to prove and I don't think Elon's lawyers will go there.)