SEC "Will Take a Beating" If Elon Musk Avoids Enforcement Action

The Securities and Exchange Commission is under mounting pressure to take action against Elon Musk as a result of the embattled CEO's tweet earlier this month, where he stated he had "funding secured" for a bid to take Tesla private at $420 per share. Musk has so far been unable to back the tweet up with any type of tangible proof that he did, in fact, have funding "secured".

After Musk’s tweet, the stock at one point briefly eclipsed $380 and since then has been volatile, swinging to as low as $282 per share in during this Tuesday’s pre-market session - a range of nearly $100 per share.

A person familiar with the regulatory investigation is on record as stating that the SEC believes they will be subjected to "a beating from politicians and in the media" if Elon Musk escapes this debacle without a sanction. Sanctions from the SEC can be monetary or remedial in nature - or both - ranging from simple fines to more serious actions like injunctive relief and officer and director bars. 

The revelation that the Securities and Exchange Commission is under pressure to act comes From a Bloomberg report that also makes two additional revelations regarding the SEC's investigation of Tesla.

  • The first is that, due to the recent pressure and the fact that there was already an ongoing SEC probe about Model 3 production and operational targets, there is the chance of that investigation being parsed out on its own, resulting in two SEC investigations.
  • The second is that the case appears to be a top priority at the SEC. It was reported that the SEC has limited the number of officials who are allowed to view the details of this case due to its sensitive and high profile nature. One SEC official went on record saying that "he couldn’t recall another matter generating as many calls from the media as the Tesla investigation."

One of the reasons that the SEC is feeling increased pressure to act is because democratic lawmakers have been critical of Jay Clayton‘s tenure as Chairman of the SEC, claiming that the agency has been too "lax" with enforcement actions. Ironically, it now appears that the alternative energy poster-child often touted by the left as the second coming could be the first to bear the brunt of a far less "lax" enforcement action.

The SEC case against Tesla for Musk’s most recent tweet seems to be moving expediently. The investigation process, which can sometimes start informally with a simple discussion between lawyers and can take months or years, was given a firm shove forward into a formal investigation when the SEC reportedly issued subpoenas to the company last week.

It is difficult to believe that the Securities and Exchange Commission will be able to sit on their hands, especially given the number of securities law experts and former SEC lawyers that have made the rounds on financial television over the last couple of weeks, all generally proclaiming that the SEC would have to act on Musk's Tweet if it turned out to be false.

To add insult to injury, the Model 3 investigation that is said to be ongoing could be helped along by yesterday‘s revelation that 86% of the Model 3s that rolled off the company's production line in the last week of June – the week the company proclaimed itself to have hit its 5,000 vehicle/week production goal – had to be reworked. The production milestone was closely watched and was of keen interest to Wall Street in determining whether Tesla is able to scale its business model.

In addition to the SEC likely having something to say about Musk’s tweet, we’re wondering if that will only be the appetizer for an enforcement action main event, which could also address statements and targets surrounding the companies "mass-market" vehicle that it used to take deposits and raise capital.