Report: Tesla was under SEC investigation over Model 3

Ethan Baron
The Mercury News

Palo Alto, Calif. – The Securities and Exchange Commission investigated Tesla over how it was selling its Model 3 sedan, but the company didn’t tell investors about it, and may still be under federal investigation, according to a new report.

The firm led by CEO Elon Musk was under investigation by the securities regulator from June 2016 to May 2017, according to SEC documents.

Tesla did not respond to a request for comment.

The Palo Alto electric-car maker’s process for selling the Model 3 — a $35,000 sedan aimed at the mass market — involved taking $1,000 deposits for future delivery. Hundreds of thousands of would-be Tesla owners have put up money for the Model 3.

The SEC investigation into the company ended with no enforcement action taken. But the regulator’s refusal, on law enforcement grounds, to provide certain other records suggested that “there is at least one other unresolved SEC probe” into Tesla, according to investment-research firm Probes Reporter, which obtained and published the SEC records. The research firm noted that Tesla had not told investors it was the subject of an SEC investigation.

SEC documents show the commission started investigating Tesla because it believed the company might have been “making false statements of material fact or failing to disclose material facts concerning the company’s Model 3 vehicle.”

Tesla was ordered to produce company documents related to Model 3 reservations, cancellations, and deposits, including how Tesla had used or planned to use the deposit money. The SEC also demanded names and credit card numbers of customers who pre-ordered Model 3s.

Tesla’s sales process for the Model 3 has been a way to create liquidity for the company, which is using a similar process with its new Roadster, said CFRA analyst Efraim Levy.

“They’re selling reservations that materially would benefit cash flow,” Levy said. “I don’t know of any crime there. It’s pretty straightforward: People are willing to wait on an open-ended time period on the potential to have a car.”

The demand by the regulator for Model 3 customers’ names appears likely to have been a way for the SEC to confirm that there were real people behind the reservation numbers Tesla was putting out, Levy said.

Tesla’s stated delivery targets for the Model 3 may have led it unintentionally to mislead customers about when they would get their vehicles, Levy said.

“As long as it was done in good faith, that’s not an issue,” he said, adding that Musk’s statements, in general, need to be taken with a grain of salt.

“He sets ambitious targets, and I think that’s part of his strategy to motivate his workforce to make them do better than they would have otherwise,” Levy said.

The SEC, in its letter to Tesla saying it was done with its investigation, advised that the notification “must in no way be construed as indicating that the party has been exonerated or that no action may ultimately result from the staff’s investigation.”

Tesla is already facing criticism after announcing in its most-recent earnings report that the Model 3 was three months behind schedule for deliveries to purchasers. Tesla is also fighting three lawsuits by black factory workers alleging that racial slurs were used against them and that the company ignored their complaints.

Probes Reporter wrote that the information in the SEC documents was “more than enough” to conclude that Tesla should have revealed the investigation to shareholders.

“Investor focus on the Model 3 has been intense this past year, with Elon and his crew fanning the flames,” according to the investment-research company.

“With this backdrop, we think investors most certainly would consider an SEC probe that asked a lot of questions about the Model 3 to be material and, therefore, would have wanted to know about it.”