Column: Teflon Elon wins again

A week later, it’s hard for me to understand how Elon Musk won his defense from a lawsuit by investors saying they were misled when he inaccurately tweeted that he had “funding secured” to take Tesla private.

It was a case of a CEO publicly stating something that was important, relevant and not true.

Musk had already settled a Securities and Exchange Commission suit over the tweets, with the automaker and him each paying fines of $20 million, which is a lot of money for most of us.

In May, a U.S. District Court judge said Musk’s comments were inaccurate and irresponsible, as discussions over Saudi funding were “clearly at the preliminary stage.”

Said Judge Edward Chen: “No reasonable jury could find that Mr. Musk did not act recklessly given his clear knowledge of the discussions.”

He would leave it up to a jury to decide if the false comments led the stock to rise.

Seeing how the share price jumped dramatically, it seemed like a no-brainer. Though perhaps there’s some splitting of hairs over how much of the rise was from him saying he was “considering” taking it private and how much was from his assurance that he had already lined up financing.

Musk’s attorney acknowledged that the words were “technically inaccurate” but not insincere. Musk believed his agreement was more firm than it was, he said. And he had other options for financing a take-private transaction, though he didn’t choose to use them.

I’m still gobsmacked that “using the wrong words” can be a winning defense strategy. I mean, sure, anyone can misspeak — it happens all the time. But he wrote and published it — that’s what Twitter is, a micropublishing site. And he seemed to mean what he said: He went back and tweeted later that “investor support is confirmed.” It’s not like in conversation, he accidentally forgot to say “almost” or “I think,” which are important qualifiers.

“Important” as in “material” — something that legitimately matters to investors, because it matters to the future of the business. “I think I have the funding” or “I could almost pull off” taking it private would strike a significantly different tone than the words he wrote.

Then again, maybe it was all just a pot joke, because his suggested price was $420 a share. And maybe investors should’ve known to not take him or his comments seriously.

Musk told the jury that his intent was to give retail investors the same information that others might have secretly. Which would be logical and even noble, if the information were accurate. But when the level-up sharing is of misinformation, that actually seems worse.

A lot has been made of Musk’s high tolerance for risk and his strategy of pushing cases to trial, rather than settling. I can’t help but wonder if his star power played a role in his victory.

I wasn’t in the room, so I can’t say if the jury chose to nullify the facts or the law because they were charmed by him or because they otherwise sympathized with the immigrant innovator who has sparked an EV revolution and didn’t want to see him punished.

Perhaps they were just starstruck. Or maybe they were just unimpressed by the plaintiffs’ argument, which may have been undersold in light of the seeming obviousness of the case.

The jury foreperson, according to The Wall Street Journal, said “There was nothing there to give me an ‘aha’ moment.”

Too bad that an examination of the accounting definition of “material” doesn’t generate profound drama.

The jury deliberated for only about two hours before deciding unanimously that the shareholders’ claim was pointless — that Musk’s statements, as CEO of a publicly traded company, weren’t material in their inaccuracy.

As hard as it was to believe the jury’s decision, it’s also totally believable, because Elon Musk always seems to just escape serious consequences for saying things that don’t turn out to be true, like his timeline for product releases or his smears of semipublic figures.

So on one hand, I’m documenting a measure of outrage over this jury’s decision. But moreso, my aim is to remind the incumbent auto industry that Tesla is seeking to disrupt that Musk doesn’t play by the same rules as you.

I have no doubt that if this were Mary Barra or Jim Farley or really any other CEO of a publicly traded company, there would be little chance that a jury would grant a similar forgiveness.

I like to watch basketball, even though sometimes the refs make bad calls. You hope they will even out, but sometimes they don’t. In the end, champions don’t hang their heads over missed foul calls, they find ways to score and win despite the bad breaks.

It’s not easy, but this is the mission for the auto industry: Don’t get distracted and disheartened by Musk’s lucky breaks — be determined to beat him in spite of them.