He repeated it incorrectly(thus the follow up tweet). And it wouldn't matter anyway because he was required to get pre-approval again, even if repeating something verbatim, if more than two days had passed. From page 12:
> According to Tesla’s Policy, any edits to a pre-approved Written Communication or even releasing a verbatim pre-approved Written Communication more than two days after it has been pre-approved requires that the pre-approval be reconfirmed. Even if the exact substance of the 7:15 tweet had been pre-approved 20 days before, Musk cannot credibly claim that he thought he was not required to obtain pre-approval again under the plain terms of the Policy. In fact, the written communication in the 7:15 tweet was not pre-approved 20 days earlier or at any time. Musk’s claim that he thought he was simply restating information from the January 30 communications is not credible.
No. The range originally mentioned by Tesla in the earnings call was production of 350k-500k cars. He then tweeted about making 500k cars a year -- guiding the world to the extreme top range of the estimate.
This is material information, and he misled investors. It's clear cut.
To further highlight this point, which of these three statements would make you the most likely to invest in Tesla:
1) 350k-500k cars a year
2) around 400k cars a year
3) around 500k cars a year
The three statements communicate different information and (3) is the best, since unlike (1) and (2) it implies there's a chance that the production numbers can exceed 500k and would certainly be close to 500k in any case. Whereas, with (1) and (2) it probably won't be.
Furthermore, quoting a specific number, even if you have the word "around" before it, implies new information was obtained narrowing down the range given in the earnings call. Giving investors more clarity on how they should invest in Tesla. This makes it material.
If we can accept the information is material, then it's pointless to argue whether it's misleading or false, since that's not what the SEC is arguing about. Musk has to pre-approve material statements (due to his settlement with the SEC) and, according to internal Tesla policy, get that approval at most 2 days before posting them. The earnings call was on January 30, so even if pre-approval was given then (it wasn't) then it would have expired on February 19 when the tweets were made.
The fact that he misled investors (proven by the fact that he issued a correction 4 hours later), just adds extra ammunition to the SECs argument that Musk should have pre-approved his tweet as pre-approval would have caught the factual errors.
And even reiterating guidance is a material event. Since the original conference call, Model 3 sales in the United States have fallen off a cliff. If after that event if Elon still believes that they are on track for 500K cars, that is material to their business, and exactly the type of tweet that he signed an agreement for his general counsel to review before hitting send.
