The trial for the Tesla shareholder lawsuit examining CEO Elon Musk’s unprecedented compensation package wrapped up Friday afternoon. Chancellor Kathaleen McCormick did not issue a ruling from the bench, and it could be weeks to months before a ruling.
“We have a lot of work ahead of us,” McCormick told both side’s attorneys as the trial concluded. “I won’t insult you with the typical talk I give at this point which is settlement is still achievable.”
Tesla awarded Musk a pay package in 2018 that helped make him the richest person on Earth. The net value of the compensation package is $50.9 billion today, after Tesla’s valuation soared more than 1,000% at its peak since shareholders approved the package.
Plaintiff Richard Tornetta originally filed the lawsuit in June 2018, alleging that Musk exploited his control of Tesla and the board of directors to secure the compensation to “fund his personal ambition to colonize Mars.” The Delaware Court of Chancery has heard arguments this week in Wilmington.
Tornetta and his lawyers allege that Musk and the board failed to uphold their financial responsibilities to shareholders. Tesla says its board of directors has a legal responsibility for shareholders’ money in addition to overseeing management, which includes Musk.
Tornetta argued that the huge pay package wasn’t needed to incentivize Musk as he already owned the largest stake of Tesla.
Testimony was heard this week from a who’s-who of Tesla insiders including Musk, board chair Robyn Denholm, former chief financial officer Deepak Ahuja, former board member Antonio Gracias, and board members Ira Ehrenpreis and James Murdoch.
The trial Friday included testimony from expert witnesses.
Kevin Murphy, a University of Southern California business school professor, testified on behalf of Tesla and the other defendants that the pay package was reasonable. He also said that Tesla’s board members were considered independent under NASDAQ’s standards. The independence of the directors is a central theme of the case.
Tornetta’s lawyers have highlighted the friendships between Musk and many of his board members who created the deal. Some have vacationed together in places like magician David Copperfield’s private island in the Bahamas, where Musk summoned his brother Kimbal and Gracias in 2017 to determine if James Murdoch should join Tesla’s board, according to Kimbal’s deposition which played in court this week. Murdoch, who described himself as a friend of Elon Musk’s since 2006, joined them on Copperfield’s Island for part of the trip, and joined the board shortly thereafter.
Several corporate governance experts told CNN Business that it’s clear Tesla’s board of directors lacks independence from Musk.
“It’s safe to say that Musk has a lot of power – and probably too much power – over the Tesla board,” George S. Georgiev a professor who studies corporate governance at Emory University school of law, told CNN Business. “The Tesla board has been extremely indulgent despite Musk’s many transgressions over the years, including his skirmishes with the SEC.”
Denholm, chair of Tesla’s board, revealed after extensive questioning in her testimony that she was unaware of the details of how Musk handles an SEC settlement that required him to not tweet about certain topics, such as Tesla’s financial condition and new business lines, unless he obtained pre-approval from an “experienced securities lawyer.”
Musk explained in his deposition that he sends certain tweets for approval, and publishes them if he hasn’t heard back in an unspecified amount of time. That arrangement leaves open the possibility of Musk’s tweets being published without the required review.
Denholm first joined Tesla’s board in 2014 and became its chair in 2018 when Musk agreed to step down from that position following SEC charges. She said in her testimony that she interviewed with Musk before joining the board of directors.
Georgiev said there’s not a lot of precedent for cases like this one because they are either dismissed or settled.
Georgiev also said this makes an appeal to the Delaware Supreme Court more likely, so the case may stretch on. He pointed to a case the compensation of Michael Ovitz, a briefly-tenured Disney CEO, which stretched on for about a decade.
The Tesla board members who testified generally spoke of the huge pay package as necessary to keep Musk engaged at Tesla.
“He’s got 100 company ideas in his mind. I promise you he’s only done very few of them,” Gracias testified. “And we wanted him focused. We needed him focused.”
Murphy, Tesla’s expert witness, also pushed back Friday on the idea that Tesla shareholders are subsidizing Musk’s Mars mission.
“I don’t think that’s any more true than USC is subsidizing my vacation. They pay me a reasonable wage for reasonable services,” Murphy said.
He said he didn’t feel that shareholders have a particular interest in how Musk spends his money.
“The fact that Mr. Musk is potentially incentivized by this money is a good thing for Tesla shareholders,” he said.
Musk is also the CEO of SpaceX and created a tunnel and transit venture, the Boring Company, as well as Neuralink, which is working toward putting computer chips in brains. Musk recently acquired Twitter for $44 billion, and has described himself as its “Chief Twit.”
Musk’s brother Kimbal had a slightly different take in his deposition. At the time of the 2018 compensation package, Kimbal said it was “very unlikely” that Elon would walk away from his role of CEO at Tesla.
“He’s responsible to the shareholders to the company. That’s just not how Elon operates,” Kimbal Musk said.