Elon Musk must still have his tweets approved by Tesla lawyer, court rules

Billionaire cannot back out of 'Twitter sitter' settlement, federal appeals court says

Twitter and Tesla chief executive Elon Musk had challenged a lower court judge’s ruling last year requiring him to abide by the deal. AP

Elon Musk cannot back out of a settlement with securities regulators reached after his 2018 tweets claiming he had secured funding to take Tesla private caused the electric vehicle maker's share price to jump and led to a temporary halt in trading, a US appeals court ruled on Monday.

The summary order by the 2nd US Circuit Court of Appeals in Manhattan was released days after a three-judge panel heard lawyers' arguments in the case.

Mr Musk had challenged a lower court judge’s ruling last year requiring him to abide by the deal on the grounds that circumstances have changed and because the decree contains a “prior restraint” that he contends violates the First Amendment to the US Constitution.

The settlement with the Securities and Exchange Commission required that his tweets be approved first by a Tesla lawyer.

It also called for Mr Musk and Tesla to pay civil fines over the tweets in which Mr Musk said he had “funding secured” to take Tesla private at $420 per share.

The funding was not secured and Tesla remains public.

In its ruling, the court said it saw “no evidence to support Mr Musk’s contention that the SEC has used the consent decree to conduct bad-faith, harassing investigations of his protected speech”.

Instead, it said, the SEC had opened “just three inquiries into Musk's tweets since 2018” and each challenged tweet “plausibly violated the terms of the consent decree”.

The appeals court also rejected Mr Musk's prior restraint argument, saying parties entering consent decrees may voluntarily waive their First Amendment and other rights.

Lawyers in the case did not immediately respond to messages seeking comment.

The SEC was investigating whether the Tesla chief executive's November 2021 tweets asking Twitter followers if he should sell 10 per cent of his Tesla stock violated an October 2018 settlement that Mr Musk signed after the agency brought an enforcement action against him, alleging that his tweets about going private violated anti-fraud provisions of securities laws.

In a written ruling in April 2022, Judge Lewis Limon said Mr Musk sent the tweets without getting pre-approval.

Mr Musk's deal with the SEC called for both him and Tesla to each pay $20 million in fines over his tweets about having secured funding to take the company private.

The funding was not secured but Tesla's stock price jumped in response to the tweets and trading in the shares was subsequently halted.

Meanwhile, Mr Musk has told Tesla staff that they cannot make new hires unless he personally approves them, The Information reported, citing a company email.

In the email, Mr Musk told Tesla executives to send him a list of hiring requests weekly, while warning them to "think carefully" before submitting the requests.

He is expected to address shareholders at the company's headquarters in Austin, Texas, on Tuesday.

Agencies contributed to this report