Tesla subpoenaed over Musk’s take-private tweet
Tesla Inc. has received a subpoena from the U.S. Securities and Exchange Commission regarding Elon Musk’s effort to take the company private, indicating the regulatory scrutiny of his statements have reached a more serious stage.
The demand for information, described by a person familiar with the matter, followed Musk’s tweet last week that he was considering taking Tesla off the market and his claim to have had “funding secured” for the deal. The electric-car maker’s shares dropped 2.6 percent to $338.69, closing at the lowest since the chief executive officer set off a firestorm last week.
SEC spokeswoman Judith Burns and a Tesla spokesman declined to comment.
Musk exposed himself to legal risk by tweeting Aug. 7 that he had the funding for a buyout, without providing specifics to back up the claim. Almost a week later, the chief executive officer and top Tesla shareholder said his confidence was based on conversations with Saudi Arabia’s Public Investment Fund, which first expressed interest in helping take the company private in early 2017.
“The whole format of his announcement was highly problematic and very unusual,” Harvey Pitt, a former SEC chairman who now leads advisory firm Kalorama Partners, said Wednesday on Bloomberg Television. “You can’t tell a lie.”
Fox Business first reported earlier Wednesday that the SEC sent the subpoena.
Musk also tweeted on Monday that Goldman Sachs Group Inc. and Silver Lake would act as financial advisers, but neither had officially signed on at that point, people familiar with the matter said Tuesday. Goldman Sachs on Wednesday suspended its ratings and price target for Tesla stock, citing its role as an adviser.
In addition to the SEC investigation, Tesla will likely need approval of U.S. national security officials if Saudi Arabia finances the effort to take the company private. President Donald Trump’s administration is stepping up scrutiny of foreign investment in American technology.
The deal, if it becomes reality, would be among the first to be reviewed by U.S. officials since Trump signed legislation this week that expands the government’s authority to investigate and potentially block foreign takeovers of domestic companies.
While many of the law’s provisions don’t take immediate effect, the measure underscores the administration’s intent to use the Committee on Foreign Investment in the U.S., known as CFIUS, to heighten scrutiny of foreign acquisitions.
“The new law makes it pretty clear that this administration is very keen on protecting U.S. technology,” said Joseph Falcone, a partner at Herbert Smith Freehills in New York. “Any foreign investment in Tesla would at least notionally be of interest to CFIUS.”
Since Trump took office, CFIUS has scuttled about a dozen transactions, mostly from China, over concerns about risks to national security.
While the structure of any investment is unknown, CFIUS has authority in some circumstances to examine foreign investments in U.S. companies even when the buyer isn’t acquiring a majority stake. The new law enacted by Trump Monday broadens the panel’s jurisdiction to examine a wider universe of investments.
The law also establishes mandatory reviews of deals involving “critical technology” when a foreign government has a “substantial interest” in the investor making the acquisition. That provision, which was seen largely directed at China, doesn’t take immediate effect, according to lawyers.
The Saudi fund, which aims to reduce the kingdom’s dependency on oil, disclosed in March that it hired Washington law firm Akin Gump Strauss Hauer & Feld LLP to lobby for approval of acquisitions in the U.S., with a focus on CFIUS.
Any U.S. concerns about transfer of technology to other countries could be mitigated by Musk’s decision to make Tesla’s patents “open source” and available at no charge.
Even before the law passed, a major investment by Saudi Arabia in Tesla would almost certainly have drawn scrutiny, according to lawyers. CFIUS can impose changes to a transaction to protect national security and can recommend that the president block a deal, which Trump has done twice.
“The big question is whether this technology is really sensitive enough and whether if acquired by a non-U.S. company it could have some kind of negative impact on U.S. national security,” said Thad McBride, a lawyer at Bass, Berry & Sims in Washington who works on cross-border deal reviews.
The answer could be yes, since the Trump administration signaled the importance of the U.S. auto industry when it announced possible tariffs on auto imports on the grounds that they could pose a threat to national security, according to McBride.
The Saudi acquisition isn’t the first foreign stake in Tesla. China’s Tencent Holdings Ltd. owns almost 5 percent of the company, according to data compiled by Bloomberg. Tesla Chief Financial Officer Deepak Ahuja told analysts last year the investment didn’t require CFIUS approval.