As a CEO of a public company, there are certain things you need to know from day one.
Brushing your teeth before a board meeting — or any meeting — is one of those.
Putting on a suit is up there, as is not harassing the help.
Another prerequisite: if you’re interested in buying another company, you have to follow some simple rules.
One is talking to a lawyer minimally competent enough to tell you to file some forms with the government in a timely fashion — within 10 days — when you accumulate more than 5% of the target’s stock.
Yes, CEO 101 stuff here.
Yet the richest man in the world, the CEO of EV maker Tesla, a very smart man who flies rockets into space named Elon Musk, somehow didn’t get that memo, as a recent enforcement action by the Securities and Exchange Commission charges.
Musk seemed oblivious — and I’m being generous here — to basic disclosure rules when he began accumulating shares of Twitter back in 2022 in the run-up to him taking the social media platform private and renaming it “X” I even asked one of his lawyers, Alex Spiro, if Musk somehow forgot to make the filing.
Crickets.
The SEC’s charges rocked Wall Street and was framed as yet another attempt by a greedy fat cat to game the system.
Even if true, that might not be the biggest “crime” committed as part of this weird tale.
A good case can be made that Musk, like his new boss and friend Donald Trump, is a victim of lawfare — where his biggest crime is being a political opponent of the ruling political party.
Serious stuff that needs to end immediately or we soon won’t have a functioning legal system.
Keep in mind, failure to disclose stock ownership when it hits the SEC’s threshold is actually pretty common because investors not involved in takeover stuff for a living (that would be Musk) aren’t always schooled in some of the basics, even if they should be.
Not like it’s a Ponzi
Plus, we’re not talking about something serious like Ponzi scheming here.
The worst interpretation is that the investor duped the system to buy shares a bit cheaper than its takeover-buzz-fueled appreciated value when the disclosures are made.
That’s why penalties of a few million dollars are levied and targets can often settle without admitting or denying wrongdoing.
Chump change for Musk, who is worth more than $400 billion.
But this isn’t about the crime or the money.
It’s about the publicity and distraction that it will generate, plenty of legal sources I speak to say.
The enforcement action came last Tuesday night, just days before Sleepy Joe Biden and his SEC chair Gary Gensler are set to leave office on Jan. 20.
Gensler has butted heads with Musk in the past over issues related to Tesla.
Yet according to my sources, the SEC (which declined comment) effectively sat on the evidence until the last minute of the Biden administration.
Recall: The first news reports about Musk buying around 9% of Twitter hit on April 4, 2022, when he first disclosed his stake.
The SEC says he hit the 5% threshold much earlier, in March.
He filed his disclosures late, and only after he was secretly accumulating shares without the market knowing about it.
The SEC has also said Musk fought taking his deposition, delaying when the charges were filed.
OK, not great behavior, but backtracking to when Musk bought the shares, and when he hit the 5%, isn’t high-level policing.
It’s 100% transparent in the SEC’s stock-tracking system.
So why now?
That means the SEC could have filed charges almost to the minute Musk went public with his intentions to take Twitter private, with or without his deposition.
As one long-time securities lawyer and former SEC official put it: “The facts of this case were known from day one. So why bring it now?”
The answer is obvious if you’ve been following our barely sentient president as he prepares to leave office amid a flurry of pardons, executive orders designed to disrupt Trump’s agenda and the nonstop attempts to jail Trump over petty crimes in recent years.
Lawfare on Trump failed, and he is now president. So Biden — or whoever is pulling the strings in the White House these days — is changing tactics.
The goal now is to embarrass and distract Trump, impede his mandate that includes reversing just about everything Sleepy Joe has done over the past four years of his wonky governance.
Musk, as has been reported, will be at the center of dismantling Bidenomics.
He will lead Trump’s government efficiency department, known as “DOGE,” where he and entrepreneur Vivek Ramaswamy vow to chop down the vast progressive administrative state.
Nothing like a civil fraud case to take Musk’s eye off the ball.
The charges even have an added advantage of driving a wedge between Trump’s new SEC chair, Paul Atkins, and his enforcement staff that investigated the matter if Atkins raises these issues and looks to dismiss or impose a slap-on-the-wrist penalty.
Yes, I know, Musk isn’t blameless here.
One interesting explanation for Musk’s role comes from a banker who knows the Tesla chief well.
“He’s not a conventional CEO in that he listens to lawyers or reads balance sheets before making big decisions,” the source said.
“He works on gut and his impulsiveness.”
I’ll take Musk’s impulsiveness over lawfare any day of the week.
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