The new stockholder vote could shift the burden of proof, but only if the vote is “fully informed and uncoerced,” McCormick wrote. Shareholder Richard Tornetta, the plaintiff who launched the lawsuit that got Musk’s pay rescinded, “has demonstrated that the vote was not fully informed,” today’s ruling said.
The January ruling in which McCormick voided the pay package said the deal was unfair to shareholders and that most of the board members were beholden to Musk or had compromising conflicts. In Tesla’s subsequent request asking shareholders to re-approve the pay plan, the company said that a yes vote could “extinguish claims for breach of fiduciary duty by authorizing an act that otherwise would constitute a breach” and correct “disclosure deficiencies” and other problems identified in the 2018 stock award.
“Tesla debuted the argument in the Proxy Statement, which described stockholder ratification as a powerful elixir that could cure fiduciary wrongdoing—not for those harmed by the wrongdoing, but for the wrongdoers. Tesla told stockholders that the Post-Trial Opinion got Delaware law wrong and that their vote would ‘fix’ it,” McCormick wrote.
But the claims in Tesla’s proxy statement are “materially false or misleading,” McCormick wrote today. “As discussed above, under Delaware law, ratification cannot be deployed post-trial to extinguish an adjudicated breach of the duty of loyalty,” and it “cannot cleanse a conflicted-controller transaction” without a full suite of required legal protections.
304 million Tesla shares
Musk’s pay plan would provide options to purchase nearly 303.96 million Tesla shares for $23.33 each, McCormick wrote. Tesla’s stock price soared in recent months and was at $357.09 today.
The plaintiff argued that the value gained by shareholders when the pay package was rescinded “equals the intrinsic value of the freed-up shares, which is the trading price, minus the exercise price, multiplied by the number of options,” McCormick wrote. The plaintiff came up with a value of $51 billion based on the $191.59 per-share closing price on the date of the January 2024 ruling. As previously noted, the latest Tesla price suggests the pay package could have been worth $101 billion to Musk.
