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Just when I thought lawfare was out, they pull me back in.
So.. a Delaware judge has once again unilaterally decided to void Elon Musk's $50 billion pay package.
For those following along, the timeline goes something like this. The exact details may be a bit fuzzy, but I think I have the broad strokes correct:
Elon Musk and the board of Tesla sign a compensation agreement where if Tesla stock goes up by some outrageous amount, Elon Musk will get an enormous reward. But it it doesn't, Elon will get very little.
People laugh (ha!) because the targets are so outlandish that there is no way in a million years that Tesla could ever...
Tesla stock meets and exceeds the targets
Some asshat with like 8 shares of Tesla sues, claiming that the pay package harmed him even though the price of Tesla stock has gone up like 1000%.
A Delaware judge sides with the asshat and voids the compensation agreement.
Elon asks for a shareholder vote on the pay package and wins with 72% of the vote despite a politically motivated campaign to pressure big funds to vote against it.
It goes back to the judge who says, nope, still doesn't count.
The judge awards the lawyers for the plaintiffs $345 million
Basically what this means is that, if you register your company in Delaware, a judge can prevent you from making legally binding contracts. If you make the wrong enemies, your shares in a company can be stripped from you. The lawyers who sue you will make a fortune.
There's a folk belief in the United States that companies register in Delaware to avoid taxes somehow. I thought this myself, but when it came time to register my own company, I learned that this is not accurate. Registering in Delaware doesn't save you any money and actually costs you quite a bit ranging from maybe $300/year for a small corporation to perhaps $100,000 for large one. People register their companies in Delaware because there is the perception that there is a large body of case law that protects companies against frivolous lawsuits.
Obviously, this is over now. You'd be a fool to register a company in Delaware. To quote Paul Graham:
This surprises me because Tesla clearly believed that the shareholder vote meant something. Are they idiots? I doubt it.
But even if this appeal was decided on boring procedural grounds, the original decision was very much about a woke judge sticking it to Musk.
And the judge could have at least limited the lawyers fees to something reasonable to prevent moral hazard.
If your read the opinion from the judge it's clear that, yes, Tesla was dumb in the way they went about it. If Tesla had done a shareholder vote at any point in the five years this lawsuit was ongoing, that could have ratified the package. Instead Tesla waited until they had lost and then did the shareholder vote to try and get the judge to reverse her decision. She also points out independent reasons why the shareholder vote wouldn't have the ratifying effect Tesla wants, including that the proxy statement for it contains material and misleading statements.
The opinion is monumentally dumb, departing from the three prior rulings which wisely declined not to tread in this shaky ground and "going boldly where no man has gone before" to absolutely violate the fuck out of federal labor law. The judge flat out admits this rescission leaves Musk uncompensated for five years of labor, cloaking it in the fig leave of "well he made a bunch of money on the stock he already owned." That's not how employment law works- employees, including CEOs, must be compensated for their labor, this is a bedrock principle of America, we even have a fucking constitutional ammendment about it.
The judge can rule it was an unfair agreement, but to abrogate responsibility to determine fairness (with a piss-poor cite to another case about bonus claw backs where employees were still paid salaries) and simply say "nope, actually slavery is fine" because she didn't like how Tesla argued the case is gross misconduct.
I get that Musk is not a sympathetic plaintiff, and I get that Tesla didnt take this seriously, but the fact that a judge can rescind a mutually agreed upon contract and leave an employee with zero dollars for five years of work and no one is making a bigger deal of it is fucking mind blowing to me. This is the kind of precedent that kills democracy. At the very least, Deleware suddenly became a very unattractive state to incorporate in.
I mean, it becomes a very unattractive state to any company that doesn't obey the party. If they can keep alternatives from developing, this is just another win win for them.
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