The Securities and Exchange Commission on March 25 told the federal judge in its case against Tesla Inc. CEO Elon Musk that an evidentiary hearing is not necessary but that Musk created a "misleading depiction" of his settlement with the SEC.
The SEC and Musk have been going back and forth with filings to the U.S. District Court for the Southern District of New York regarding whether Musk should be held in contempt for allegedly violating the 2018 settlement that requires the CEO to seek preapproval for social media posts that may be relevant to Tesla and its investors.
In a March 22 filing, Musk maintained that his Feb. 19 tweet claiming that the automaker will produce 500,000 cars in 2019 did not violate the settlement because the tweet was "not material" to Tesla investors and because the SEC's argument "rests on an incorrect interpretation of the policy."
Musk's lawyers said the tweet contained information that was already publicly available through the company's Jan. 30 earnings call and previous announcements.
The SEC has said that even though that information was approved for the earnings call, it would need to be approved again if published more than two days from the original approval.
In the March 25 filing to federal judge Alison Nathan, the SEC said "Musk's selective omission of certain settlement communications from his submission results in a misleading depiction of the parties' negotiation of the pre-approval requirement."
The SEC has offered to provide more examples to the judge showing exactly where in the settlement Musk is required to ask for preapproval when writing social media posts that could impact Tesla or its investors.