Musk statement on Tesla production raises questions

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FILE - In this March 9, 2020, file photo, Tesla and SpaceX Chief Executive Officer Elon Musk speaks at the SATELLITE Conference and Exhibition in Washington. Musk has tweeted his way into trouble with another federal agency, this time the National Labor Relations Board. The board on Thursday, March 25, 2021 found that a Musk tweet in May of 2018 unlawfully threatened employees with loss of stock options if they decided to be represented by a union. Board members ordered Tesla to make Musk delete the tweet and stop threatening employees with loss of benefits for supporting a labor organization. (AP Photo/Susan Walsh, File)

DETROIT – Tesla CEO Elon Musk is once again drawing scrutiny for questionable comments he made to Wall Street analysts, this time involving the status of his company’s vehicle production.

On a Jan. 27 conference call to discuss Tesla's fourth-quarter earnings, Musk stated that the company was producing new versions of its oldest models, the S sedan and X large SUV. He added that a “Plaid” high-performance version of the electric S would be available in February.

In reality, Tesla produced none of either model during the quarter, according to delivery and production figures that the company released late last week. Instead, all the roughly 180,000 vehicles that Tesla made from January through March were of its other models, the 3 small sedan and the Y small SUV.

Experts say the disparity between Musk's statement to analysts and the figures that showed zero production risks drawing the attention of Musk’s longtime nemesis, the U.S. Securities and Exchange Commission. For years, the agency has grappled with Musk over questionable statements he has made on Twitter that affected Tesla's share price.

“I think he might have himself into a bit of trouble with the SEC,” said Anthony Sabino, an attorney and law professor at St. John's University. “These are fairly direct statements. They are fairly unequivocal.”

John C. Coffee Jr., a Columbia University professor who is a leading authority on securities law and corporate governance, said Musk’s assertion sounded like a statement of fact and not merely a projection of Tesla’s future production. If the SEC agrees, Coffee said, it could initiate an inquiry.

At the same time, Coffee noted, Tesla could argue that Musk's statement was only a prediction and not a declaration of fact, and that something later happened to alter that prediction. If regulators agree, Musk’s statement would be protected by Tesla's standard disclaimers about the uncertainty of forward-looking statements, Coffee said.

The SEC declined to comment. Messages left for Tesla, which has disbanded its press office, went unanswered.