Elon Musk speaks at SolarCity’s Inside Energy Summit in New York.
Rashid Umar Abbasi | Reuters
Newly unsealed court documents show why a number of large Tesla investors, including some pension funds, believe its $2.6 billion acquisition of SolarCity in 2016 never should have happened.
The documents are an opening brief in a shareholders’ lawsuit against Tesla over the acquisition, but were previously heavily redacted. Legal transparency advocates PlainSite published a fuller version of the documents on Monday.
Shareholders are accusing Tesla of improperly valuing the SolarCity deal, providing flawed analysis and misleading investors, among other things.
The lawsuit, originally filed in 2016, is one of many facing Tesla and CEO Elon Musk, including a lawsuit from Walmart over solar installations that caught fire on the rooftops of some stores, at least two wrongful death lawsuits filed after drivers died while using Autopilot, and a defamation lawsuit against Musk from cave rescue hero Vernon Unsworth after the CEO called him a pedophile on Twitter and in e-mails to a reporter.
Tesla disputes the shareholders’ claims and disagrees with court’s decision to let the case move forward. The company pointed CNBC to a previous statement on the case:
“We do not agree with the decision and will be taking appropriate next steps. It’s important to emphasize that this was a motion to dismiss in which the court was required to assume as true all of the allegations that are made in the complaint. We, of course, contend the allegations in the complaint are false.”
The Musk ‘pyramid’ of companies
The newly unredacted court documents claim to show the tangled financial and personal relationships between several Musk investments: Tesla and SpaceX, where Musk is CEO, and SolarCity, where he was the largest shareholder and chairman with his first cousins in the executive suite.
The documents claim that “Prior to the Acquisition, Musk described Tesla, SolarCity, and SpaceX as a ‘pyramid’ atop which he sat; it was ‘important that there not be some sort of house of cards that crumbles if one element of the pyramid . . . falters.'”
Notably, Musk had previously invested SpaceX money in SolarCity, and important aspects of that deal were hidden from auditors Ernst & Young before Tesla acquired SolarCity in 2016, the shareholders say.
Specifically, the brief claims SpaceX had poured around $165 million into the solar installers as non-recourse bonds, and SolarCity failed to disclose to E&Y how quickly they would have to make two substantial payments related to those bonds back to SpaceX.
Shareholders say that even though Musk claims he recused himself where it was proper to do so, he was never really divorced from the deal-making process. He and his first cousin, Lyndon Rive, the co-founder and former CEO of SolarCity, spent time hatching out a plan to save the solar company from a liquidity crisis while on vacation in Lake Tahoe in early 2016, the filings say. Soon thereafter, Tesla’s then-CFO Jason Wheeler drafted a proposal for the Tesla board of directors to do the deal.
The filing says: “The Board did not reject Musk’s proposal, as represented in the Proxy. Instead, the Board ‘authorized management to gather additional details and to further explore and analyze’ a SolarCity acquisition.”
Just after Tesla closed the $2.6 billion SolarCity deal, E&Y said that the solar company was insolvent, the filing claims.
In addition, the brief claims that a majority of Tesla board members had financial interests on both sides at the time of the deal and wanted to see SolarCity bailed out rather than bankrupted in order to protect their own reputations, and their bets on other companies where Musk was and is still CEO.
For example, Elon and Kimbal Musk, Antonio Gracias, and Steve Jurvetson were all Tesla board members at the time of the SolarCity acquisition and were early backers of and board members at SpaceX. Ira Ehrenpreis, a long-time Tesla board member, held a board seat at SolarCity after funding it via his venture firm, Technology Partners. Kimbal Musk is Elon Musk’s brother. And Lyndon and Peter Rive, co-founders of SolarCity, are first cousins of Elon and Kimbal Musk.
The court filings also say that a “fairness committee” at Evercore, financial advisors hired by Tesla to analyze the SolarCity deal, refused to issue an opinion on it. Meanwhile, the filings say, Lazard, a financial advisor hired by SolarCity, sought other bids for the company and couldn’t find a single one.
The stockholder suit was filed against Tesla in a Chancery Court of Delaware more than three years ago. Stockholders were granted class-action status in April 2019.
After Tesla’s current and former board members, including Elon Musk, were deposed the court documents were published with numerous redactions, obscuring details around SolarCity’s relationship with SpaceX, and information concerning Ernst & Young, Lazard and Evercore.
Those documents were partially unsealed at the request of lawyers for the stockholders who are suing Tesla. PlainSite has filed a motion to unseal even more material.
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